Scottish Court of Session Decisions

On 24th December 1907 James F. Crowe, 2 Ash brook Terrace, Dublin, broughtan action against James Cook, Wrangholme Lodge, Portobello, executor-nominate of the late Mrs Mary MacNeil Jolly or Hall Maxwell, Wrangholme Lodge aforesaid, in which he sought declarator that Mrs Hall Maxwell died intestate quoad her heritable estate, and that he, as assignee of her heir-at-law, was entitled thereto. At the date of her death Mrs Hall Maxwell possessed heritable property to the value of about £2000. The net value of her moveable estate was about £10,750.

Mrs Hall Maxwell left three testamentary writings, with only the last of which, however, this report is concerned. It was as follows:—

“39 Melville Street, Edinburgh,

March 20th 1903.

I, Mary M'Neill Hall Maxwell, being in my proper mind, do herebye leave and Bequeath to James Cook the sum of ten thousand pounds Sterling— my that is the said ten thousand that is at present lent to the Borough of Motherwell. I also wish him in case any thing happens to me to see to my funeral and that all my animals are shot, and I appoint Mr Wedderburn of Carmet Wedderburn and Watson to assist him, all my Jewels—save a diamond Broch Diamond pendant, which Mrs Jolly gave me, to be retured to her. eveythg else to be sold. I leave one hndred ponds to the Home for falln Sisters and one hundred to prevention of Cruelty to Animals, and Five hundred to my Mother, Mrs Magaret Jolly. Thre Hundred to my Aunt Miss Doro Fitzgerald who will also get all my clothes that are of any use and I leave the remainder to fond and endow a small Home for old Colliers that have become unable to work, and the same to be furnished & a dinner given at Xmas and New Year, the same to have Beer and tobocoa, and I appnt the before said Mr Wedderburn and James Cook to see that this is carried out A site to be got on Newarthill grond but not on that owned by Messrs Nimo the preference to be given to those Colliers that may have worked in Stevenston and Newarthill Pits. And I sign this on the above date being of sond mind. ( Signed) Mary M'Neill Hall Maxwell. Witnessed by Jemina Sutherland ( Signed) Jemima Sutherland, Wittness.” [The word my (in italics) was deleted.]

The defender, inter alia, pleaded—“(3) The heritable estate of the testatrix being carried by her testamentary writings, the declarator sought should be refused.” On 25th June 1908 the Lord Ordinary ( Johnston) granted decree as craved.

Opinion.—“In the application of the enactments of the 20th section of the Titles to Land Act 1868, to concrete circumstances, there are many cases, as was said by Lord M'Laren, as Lord Ordinary, in M'Leod's Trustee, 10 R. 1056, which come near the dividing line. It may be that this is one of them, though for my own part I think it not only does not cross, but is a good long way from reaching the rubicon.

Mrs Hall Maxwell left three documents of a testamentary nature. The first two, though informal, are exceedingly concise, businesslike, and clear in their intention. Mrs Hall Maxwell was in 1899 possessed of certain heritable property in Leith Walk, not, I gather, in itself of much intrinsic value, but possessing a potential or fictitious value, because it was known that the Caledonian Railway Company wanted it for the purposes of their line. By a very brief document, dated 29th March 1899, by which time I think the Railway Company must have actually entered on possession, she bequeathed this property expressly to the defender James Cook, and there is no doubt that by virtue of the 20th section of the Act of 1868 this document would have been a valid conveyance.

But the sale to the Railway Company at £9000 was completed very shortly after, and on May 30th of the same year Mrs Hall Maxwell, on the narrative of the sale, bequeathed ‘the said sum to James Cook.’ Four years afterwards Mrs Hall Maxwell executed the third document, which is the cause of the present question. It does not expressly appoint executors. But it does so, I think, impliedly, and is an effectual though informal testament, and so good to transmit moveables. The question is, does it also carry heritage?

It first bequeaths to James Cook £10,000, at present lent to the burgh of Motherwell.

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I think it was assumed that this included the £9000 derived from the Caledonian Railway Company, and that the prior bequest of this sum had been adeemed by its merger in Mrs Hall Maxwell's general estate, and its investment in this particular bond. The document then proceeds—‘I also wish him, in case anything happens to me, to see to my funeral, and that all my animals are shot, and I appoint Mr Wedderburn of Carment, Wedderburn, & Watson, to assist him.’ She then gives directions as to her jewels, leaves two small legacies to charities, two personal legacies, and a bequest of ‘all my clothes that are of any use,’ and then concludes—‘I leave the remainder to found and endow a small home for old colliers that have become unable to work, and the same to be furnished and a dinner given at Christmas and New Year, the same to have beer and tobacco, and I appoint the before said Mr Wedderburn and James Cook to see that this is carried out, a site to be got on Newarthill,’ &c.

As I have said, I think that this must be read as, at least by implication, an appointment of executors, and therefore, in the language of the above-mentioned section, confers upon such executors ‘a right to claim and receive’ the granter's moveable estate—in fact, to confirm and administer. But I think that there is superadded to the executry appointment something of the nature of a continuing trust.

But that does not naturally result in the granter's heritage being carried to the executors or trustees, even if they be regarded as having the wider title and functions. That result must be reached, if at all, by virtue of the provisions of the 20th section of the Titles Act 1868. Now in applying that section, if a testator has not only failed to convey his heritage, but even shown himself so incapable of expressing his intention as to have failed to bring himself within the provisions of that section, I do not think that the Court is concerned with conjectures as to whether he did, notwithstanding, really intend to convey his heritage. As the late Lord President (Inglis) said in Pitcairn's case, 8 Macph. 608, the statute did not intend ‘to make every will of a proprietor of land effectual as a conveyance of heritage.’

I do not think it necessary to quote the section which has been so often canvassed. Shortly it provides that it shall no longer be necessary in the mortis causa conveyance of land to use words of de presenti conveyance or any voces signatœ, provided the document purports to convey or bequeath land, and by way of making this operative adds, that where such document ‘shall contain with reference to such lands any word or words which would, if used in a will or testament with reference to moveables be sufficient to confer upon the executor of the granter, or upon the grantee or legatee of such moveables a right to claim and receive the same,’ such document shall be deemed and taken to be equivalent to a general disposition of such lands. The essential words are then ‘purports to convey or bequeath lands’ and ‘with reference to such lands.’ Now, what the statute intended to cover was, I think, such a case as M'Leod's Trustee, 2 R. 481. But though in my view it was contemplated that the ‘purporting’ and the ‘reference’ to land, either in general or special, was to be express, I recognise that by a series of decisions it has been accepted that the ‘purporting’ and the'reference’ may be implied. Still the question must always be, as put by Lord Young in Forsyth v. Turnbull, 15 R. 176, shortly repeating what had already been said by the Lord President Inglis in Pitcairn's case, supra, the question is not as to the sufficiency of the language to convey property, but as to the sufficiency to include land of the description of the property intended to be conveyed.

In the present case there is certainly nothing which in the document of 1903 under construction expresses the intention to convey lands. But counsel for the defender sought to imply such intention from words which I have not yet quoted, viz., “everything else to be sold,” as raising the implication of a universal settlement. I abstained from quoting these words till now because I think their meaning and relation has been entirely misunderstood. They occur in connection with the direction as to jewels, thus—‘All my jewels save a diamond brooch, diamond pendant, which Mrs Jolly gave me, to be returned to her, everything else to be sold.’ This is ungrammatical and elliptical, but what it clearly means is, ‘my two special jewelled ornaments, which Mrs Jolly’ (her mother) ‘gave me are to be returned to her, and all my other jewels are to be sold.’ By no admissible construction can the words be twisted to imply the description of the lady's universitas, heritable and moveable. But it was on this premiss only that it was contended that when the testator came to leave ‘the remainder’ to found her endowment, she meant the remainder of the realisations from her universal estate after paying her legacies. Neither can I accept the premiss nor can I accept the conclusion without the premiss—indeed it was not pressed that I should do so—for this could only be on the suggestion that the testator was not likely to found such a charity unless she contemplated devoting to it the whole residue of her estate both heritable and moveable. It may be so, but the conclusion would require an excursion into the realms of conjecture which I am not entitled to make.

I have carefully considered all the other cases cited:— M'Leod's Trustee v. M'Luckie, 10 R. 1056; Forsyth v. Turnbull, 15 R. 172; Copland's Executor, 15 S.L.T. 733; Hunter, Jack's Executor, 15 S.L.T. 989, for the defender; and Urquhart, 6 R. 1026; Campbell, 15 R. 103; Grant v. Morren, 20 R. 404, for the pursuer—and they confirm me in the conclusion which I have reached.

I shall therefore grant decree as craved.”

The defender reclaimed, and argued—The question was, Did the words used by the

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testatrix show an intention to deal with her heritable estate, for if they did the absence of technical words was immaterial— Jack's Executor v. Downie, March 7, 1908, 45 S.L.R. 545. In considering that question the presumption against partial intestacy must be kept in view. The expressions “everything else to be sold,” and “I leave the remainder,” &c., showed that the testatrix meant to dispose of her whole estate. If the heritage were not disposed of by the will there would not be enough to pay the legacies in full. Heritage had been held carried by such expressions as “all my estate”— Jack's Executor, cit. sup.—“my whole estate”— Copland's Executors v. Milne and Others, 1908 S.C. 426, 45 S.L.R. 314; “remainder of my property”— M'Leod's Trustee v. M'Luckie, June 28, 1883, 10 R. 1056, 20 S.L.R. 714; “means and effects”— Forsyth v. Turnbull, December 16, 1887, 15 R. 172, 25 S.L.R. 168; “all the rest”— Attree v. Attree,, 1871, L.R., 11 Eq. 280; Smyth v. Smyth, 1877, L.R., 8 Ch. Div. 561. The words “everything else to be sold” could not refer merely to the jewels, for their value was only about £30, a sum quite insufficient to meet the legacies. They could only refer therefore to the totality of the estate. That was the only reading which would make sense of the document.

Argued for the respondent—The Lord Ordinary was right. The law presumed that a testator intended his estate not otherwise destined to go to his heir or next-of-kin. In order that a deed should convey heritage it was essential that the words used should clearly import an intention to convey land. That could not be said here, for the words used were neither habile to convey land nor words importing universality, and both qualifications were essential. There was no appointment of trustees or even of executors. The words “everything else to be sold,” on which the reclaimers founded, plainly referred only to the jewels. In addition to the cases cited ut sup., reference was made to the Titles to Land (Scotland) Act 1868 (31 and 32 Vict. c. 101), sec. 20, and to Pitcairn v. Pitcairn, February 25, 1870, 8 Macph. 604, 7 S.L.R. 329; M'Leod's Trustees v. M'Leod, February 28, 1875, 2 R. 481, 12 S.L.R. 349; Urquhart v. Dewar, June 13, 1879, 6 R. 1026, 16 S.L.R. 602; Campbell v. Campbell, November 30, 1887, 15 R. 103, 25 S.L.R. 97; Grant v. Morren,, February 22, 1893, 20 R. 404, 30 S.L.R. 442.

At advising—