Scottish Court of Session Decisions

The late Charles Irvine, planter in Tobago, died intestate and without issue in 1798. He left a widow, two brothers, and four sisters. His brother, Walter, was heir in heritage, and his brother, Christopher, and his sisters, were entitled to succeed him in his moveable estate, which was chiefly situated in Tobago. An arrangement was made as to his moveable succession, between Walter Irvine, on the one part, and the widow of Charles, and the younger brother and sisters, on the other part, in virtue of which, Walter Irvine bound himself to pay an annuity of £500 to the widow, an annuity of £100 to one of his sisters, and a capital sum of £2250 to each of the other sisters, and to his brother; and they respectively assigned to him their whole interest in the succession. The four sisters conveyed their interest to him by two deeds of assignation in 1798 and 1800, executed in Scotland. It was implied in these deeds that the realizing of the succession would be attended with much trouble and hazard from various causes.

Walter Irvine had three daughters, Elizabeth, Christina, and Catherine. In 1821, Lord William Douglas married the eldest daughter, Elizabeth, and Walter Irvine became a party to the contract of marriage. He bound himself that one-third of the whole estate, real and personal, which should belong to him at his decease, should be conveyed to trustees, who should apply the interest for behoof of his daughter, during her lifetime, excluding Lord William's right and interest, and afterwards for Lord William's behoof, if he survived her. The trustees were to hold the fee for the issue of the marriage. Walter Irvine reserved power over his estate by any deeds to take effect in his lifetime; and also to burden it with such legacies as he pleased.

Part of the property of Walter Irvine consisted of the lands of Denino and others in Fife, which formed a valuable estate, in which he was infeft. In 1823 he executed a will in the English form, by which he directed, that, in apportioning his estate and effects among his three daughters, his lands in Fife should be allotted to satisfy the third share effeiring to Lady William Douglas and her issue, in satisfaction of the settlement contained in her marriage-contract; that a legacy of £35,000 should be held by his trustees and executors, to apply the interest for behoof of each of his unmarried daughters, and the fee for their issue, if they married and left issue; and that the residue of his estate, if any, should be held by the trustees for behoof of his three daughters, the interest being payable to them, and the fee to their issue. Failing such issue, directions were given to the trustees as to the ulterior disposal of the fee. Under this will trustees and executors were appointed, who were different from the trustees in the marriage-contract.

Walter Irvine died in 1824, at which time he was domiciled in England, and had resided there since his return from Tobago in 1796. Three of his trustees and executors, all of them then domiciled in England, took out letters of administration in England, which embraced by far the greater part of his moveable estate. But there were moveables to the amount of £5258 in Scotland, and Lord William Douglas, one of the trustees and executors, under the will, expede a confirmation, giving up that sum in the inventory. The funds uplifted under this confirmation were placed under the control of the English trustees and executors. Lord William Douglas and his lady subsequently became resident and domiciled in Scotland.

Walter Irvine left no disposition which was effectual to convey his Scottish heritage, but, in his will, he directed his “three daughters to make a proper deed or instrument of disposition in the Scotch form of all my real and heritable estates in Scotland, so as to enable the trustees of this my will, to carry my will into complete effect.” And he enjoined that if they failed to do this, they should be liable to make compensation, out of the provisions left to them in the will, to any beneficiary under the will whose interest should thereby be injured. After the death of Walter Irvine, his three daughters were served heirs-portioners of line in special to him in the lands of Denino holding of the Crown, and they were infeft; after which, they, in concurrence with the trustees and executors named in the will, conveyed the estate to the trustees in the marriage contract of Lady William Douglas, to hold it in terms of the settlement of the third part of Walter Irvine's means and estate, contained in her marriage-contract. The conveyance proceeded on the narrative, that it was done in order that Walter Irvine's will might be carried into complete effect.

In 1833, John Kirkpatrick, advocate, who was the nephew of Walter Irvine by a deceased sister, raised an action of constitution against the daughters of Walter Irvine, with a view to establish his right under a settlement which had been executed by his aunt, Mrs Glissan or Irvine, one of the sisters of Walter Irvine. Defences were lodged, in which the defenders pleaded, that the settlement did not cut off the right of the heir-at-law of Mrs Glissan; that they, the children of Walter Irvine, and his “heirs and representatives,” were in his right as heir in heritage of Mrs Glissan, and that they were therefore preferable on the subject in competition.

In 1837, Kirkpatrick, as in right of his mother, and also of certain of his aunts, under their settlements, raised an action to reduce the assignations granted by them in 1798 and 1800, conveying to Walter Irvine their shares in Charles Irvine's succession. The reduction alleged fraud, facility and lesion, as affecting the deeds. The action was directed against Lady William Douglas and her husband, who had now been resident for several years in Scotland; and also against Miss Christina Irvine, who had never been domiciled in Scotland, but who was residing with Lady William Douglas when the action was raised, so that the summons was served on her personally. The third daughter of Walter Irvine had died before this period without issue, and her interest in the succession had accresced under her father's will, to her surviving sisters and their issue. The conclusions of the action were for reduction of the deeds, and for count and reckoning as to the true value of Charles Irvine's succession, intromitted with by the late Walter Irvine, or, failing thereof, to pay a sum of £50,000 to the pursuer.

Lady William Douglas and Miss Christina Irvine lodged preliminary defences, in which they pleaded, 1st, That they were not the proper representatives of their father, and could not be called on to answer to the action. Under the will, they were mere legatees of a certain life-interest, payable to them by trustees, who were to hold the fee for others. Though they had made up a title by service, and, in concurrence with the executors under the will, had conveyed the Scottish estates of Denino and others, to the trustees in the marriage-contract of Lady William Douglas, they did this merely in implement of the directions of the will, and they took nothing, qua heirs, by that service, so that it did not infer representation against them. ¹ Walter Irvine had died domiciled in England; he had left trustees and executors under his will, three of whom, also domiciled there, took out letters of administration in England, and had received whatever sums were uplifted under the confirmation in Scotland. These trustees and executors held his general property under their management, and they alone had access to his papers and vouchers, so as to be able to defend this reduction on the merits. These parties were the proper representatives of Walter Irvine, and as the action could be readily brought against them in England, it ought to have been so brought. It was improper to direct it against mere legatees, though one of them happened to have come to reside in Scotland since Walter Irvine's death. As to the terms used by the defenders in pleading their former action with this pursuer, these terms were not decisive in so serious a matter as that of fixing down a general representation, and they could not have effect beyond that action itself. 2d, All parties interested were not called. Mrs Charles Irvine, the widow of the deceased Charles Irvine, was still alive, and as she had received, and was still receiving, an annuity of £500 per annum under part of the arrangement by which Walter Irvine acquired his right to the succession of Charles Irvine, she ought to have been made a party to the reduction.

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¹ Earl of Fife, March 7, 1828 (ante VI., 698); M'Kay, January 13,1835 (ante XIII., 246); Nisbet's trustees, February 20, 1885 (ante XII., 497); Blount, February 26, 1783 (9731).

The pursuer answered, 1st, In a former action with him, the defenders had judicially asserted that they were the heirs and representatives of their father, and had competed with him in that character. This alone deprived them of their first preliminary defence. But, independently of this, they had served heirs-portioners of line to their father, and had taken up a valuable Scottish estate, which, in conjunction with the trustees under their father's will, they had conveyed to the marriage-trustees of Lady William Douglas, who held it for behoof of her in liferent, and her issue in fee. Though this was done in implement of the will, it was not the less a beneficial taking up of the succession, by representation. Its benefit to Lady William Douglas was obvious; and as to the other daughters, they might have repudiated the will if they pleased, and elected to take a share of the Scottish estate, as heirs-portioners, seeing that no valid disposition of that estate had been left by their father. But it was more for their interest to obey the will, and obtain for themselves and their issue the full benefit of the very large provisions there conceived in their favour. And although their father had interposed the machinery of a trust in order to carry most securely into effect the provisions so made for them, they were the beneficiaries under the trust, and were equally benefited by the succession. In making up titles to the Scottish estate, and conveying it as they did, the whole daughters were, therefore, just adopting the most prudent means of taking up a great and beneficial succession; and they were in a quite different position from parties who either expede a general service as a mere tentative title, or who expede a special service merely to convey away an estate for behoof of the creditors of a party deceased; though even in this last case it was not clear that representation would not be incurred ¹ if the benefit of inventory was not resorted to. 2d, The fraud and circumvention founded on by the pursuer, for reducing the deeds, affected the transaction between Walter Irvine and his sisters only; and not between Walter Irvine and Mrs Charles Irvine. And, at any rate, the pursuer represented none but these sisters. He had neither title nor interest to challenge the transaction between Walter Irvine and Mrs Charles Irvine; and as she was not affected in any shape by the action, it was unnecessary to call her.

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¹ Aytoun, July 7, 1784 (9732).

A separate ground of objection to the jurisdiction of the Scottish Courts, was stated by Miss Christina Irvine, who had never been domiciled in Scotland; and, in reference to this, it was pleaded by Lady William Douglas, that, unless Miss Irvine was amenable to the jurisdiction of the Scottish Courts, no action which was directed against her (Lady William Douglas) as heir-portioner, was competent, because, in such actions, it was necessary to call the whole heirs-portioners into the field. In answer to this plea, the pursuer, besides maintaining that Miss Irvine was, on various grounds, amenable to Scottish jurisdiction, pleaded that, at all events, Lady William Douglas was so; and that, if it were otherwise, then it must follow, whenever one of a set of heirs-portioners was domiciled in England, and had left no property in Scotland, that no action would lie, in either kingdom, against the heirs-portioners, because the whole of them could not be convened together, either in the courts of England or of Scotland. Lady William Douglas must, therefore, answer here for the full liability incurred by her as an heir-portioner and representative of her father, whether her sister was liable to the jurisdiction of the Scottish Courts or not.

The Lord Ordinary ordered minutes of debate, and “made avizandum” ^* therewith to the Inner House.

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* “ Note.—When this case was debated on the Summons and Defences, the Lord Ordinary had not an opportunity of seeing and deliberately perusing the deeds, on which the Preliminary Defences depend, and as the case was pleaded, he considered it was attended with more difficulty than it will probably be found when the facts are more fully explained.

“This is an action to reduce and set aside certain deeds executed in Scotland in favour of the defender's alleged predecessor, Walter Irvine, Esquire, and concluding for payment of certain debts or sums as still due to the pursuer by Mr Irvine, on the footing of the deeds being reduced.

“Mr Irvine, the alleged debtor, dieil in 1823. For many years prior to his death, he was domiciled in England, and he left a settlement in the English form, which was administered in England. But he also left a large estate in Scotland, and he also left certain personal funds, which, it appears, were the subject of confirmation in the usual form, by the executors in Scotland. The landed estate in Scotland is now confessedly in possession of the defender, Lady William Douglas, in consequence of a provision made in her marriage-contract, to which her father Was a party, and in consequence of titles made up by her and her sisters, as heirs-portioners of her father, to enable the trustees to invest the estate in her.

“Now, when the case was pleaded, it was supposed that this estate was enjoyed by the defenders, in virtue of a specific and onerous conveyance or obligation in the marriage-contract. But this does not appear to be the case. The obligation on Mr Irvine in the, marriage-contract, was merely to give the defender one-third of the whole real and personal estate, which he might be possessed of at the period of his death, that of course is very different from an obligation to convey a particular estate to a third party at a future period; because, possibly in the latter case, the estate might be claimed by the obligee in an ante-nuptial and onerous marriage-contract, without being subject to the debts of the granter; while in the former instance, which now appears to be more similar to the present rase, the right is only given to such n free portion of the father's estate as he might happen to leave deductis debitis. The very taking up of a share of a succession under such a provision seems to imply a liability (at least to the extent of the estate) for the debts of the predecessor, which the defenders cannot object to.

“Moreover, when it is considered that the deceased not only left a large Scots estate, but that the question to be raised, is the validity of certain deeds executed in Scotland, it is difficult to hold, that the Scots Court is not the proper forum for trying such a question.

“It was mainly from not being fully aware of these circumstances, that the Lord Ordinary took the case to report, as the speediest mode of having it determined whether this Court had jurisdiction to try the question on the merits, a point which it was obviously for the interest of all parties to have settled before further expense was incurred. The statement in the papers, and the quotations from the deeds founded on, now exhibit the real state of the case in the most satisfactory manner for the consideration of the Court.”