Scottish Court of Session Decisions

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Cite as: [1866] SLR 1_210_1, [1866] ScotLR 1_210_1

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SCOTTISH_SLR_Court_of_Session

Page: 210↓

Court of Session Inner House Second Division.

Friday, March 9. 1866.

1 SLR 210_1

Dunn Pattison

v.

Henderson and Others.

Subject_1Title to Pursue
Subject_2Reduction ex capite lecti
Subject_3Heir of Provision.
Facts:

Terms of a provision in a deed of settlement which held to confer on the heir of provision a title to pursue a reduction on the head of deathbed of a conveyance to his prejudice.

Headnote:

The deceased William Dunn of Duntocher, by dis, position and deed of settlement, dated 17th Apri-1830, disponed to his brother, Alexander Dunn (now also deceased), “and his heirs and assigns whomsoever, all and sundry lands, tenements, tacks, and other heritages, and goods, gear, debts, sums of money, and effects; and in general the whole subjects and estate, heritable and moveable, real and personal, owing and belonging, or that shall be owing and belonging to me at my death, with the whole rents, interest, and produce, and writs, evidents, and securities of the premises and by a subsequent clause, “declaring, as it is hereby specially provided and declared, but without prejudice
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in any respect to, or limitation of, the rights and powers of the said Alexander Dunn, under and by virtue of the conveyance in his favour before written, to exercise the most full and absolute control in the disposal of the said estate and effects, either during his lifetime or by settlements or other writings, to take effect at his death; that in the event of his dying intestate, and without leaving heirs of his body, and of his not otherwise disposing of the subjects and estates hereby conveyed to him, the same shall fall and devolve, and accordingly I do hereby, in these events, but under the burdens and provisions before written, dispone, alienate, and convey my said subjects and estates, heritable and moveable, to the persons, and in the terms aftermentioned.” William Dunn died on or about 13th March 1849, and thereafter Alexander Dunn made up titles to the subjects conveyed to him as above, and to the lands of Boquhanran, including the property and superiority thereof and other subjects. Alexander Dunn died on the 15th of June 1860, leaving a trust-disposition and settlement, bearing date nth June 1860, whereby he, in the fourth place, directed his trustees to convey the lands, part of Boquhanran, and others, with the mansion-house of Dalmuir, situated thereon, also acquired by his said brother since the date of his disposition and settlement, in favour of the eldest lawful son of Sarah Park or Black, his niece, whom failing, as provided by his said brother's settlement, with respect to the third portion or division of the lands thereby specially destined.

The pursuer, Mr Alexander Dunn Pattison, is the eldest son of Mrs Janet Park or Pattison, another of Mr William Dunn's nieces, and seeks to challenge ex capite lecti the second trust-disposition and settlement executed as above, in so far as it conveys the said lands of Boquhanran and others to the parties therein named. The case was on a former occasion before the Court on a question between the heir-at-law of William Dunn and the several beneficiaries under his settlement, when the court held that the heir-at-law had no title to sue a reduction of Alexander Dunn's settlement, in respect he was excluded by a valid substitution in favour of others, contained in the prior settlement of William Dunn (M'Ewan v. Pattison and Others, 27th March 1865, 3 Macp. 779). The judgment then pronounced is referred to in the opinion of the Lord Justice-Clerk today, and formed the main ground upon which the present judgment was rested.

In the present action the Lord Ordinary (Jerviswoode) held, in point of law, that the title of the pursuer, libelled as heir of provision to Alexander Dunn, “under and in virtue of a disposition and settlement, made and granted by the said deceased William Dunn,” is excluded, and is unavailing to the pursuer as a title to reduce the trust-disposition and settlement of Alexander Dunn, in respect of the conveyance as above set forth by the said William Dunn in favour of his brother, the said Alexander Dunn, “and his heirs and assignees whomsoever,” and in respect of the exercise by the said Alexander Dunn of the special powers conferred upon him under and in terms of the said disposition and deed of settlement of William Dunn.

In advising a reclaiming note for the pursuer

Judgment:

The Lord Justice-Clerk said—This is a summons which contains several conclusions, but the leading conclusion is for reduction of a deed executed by Alexander Dunn, in so far as it conveys certain heritage to the prejudice of the pursuer, on the ground of deathbed. We have to deal with that part of the case alone, and with the objection to the title of the pursuer to sue a reduction ex capite lecti, as this is the only matter disposed of by the Lord Ordinary. The judgment of the Lord Ordinary sustaining the objection to the title to sue disposes of the whole case, because the other conclusions depend upon the pursuer succeeding in the leading conclusion of his action. The title libelled by the pursuer is this, that he is the only lawful son of Mrs Janet Park or Pattison, niece of William Dunn and as such an heir of provision to Alexander Dunn in the lands, &c., under and in virtue of the disposition of William Dunn. The plea of the defenders, which is directed to a challenge of this title, is as follows:—“The pursuer, in respect he does not possess the character of heir of provision to the deceased Alexander Dunn, alleged by him, so far as regards the lands of Boquhanran and others, with the mansion-house thereon, conveyed, or directed to be conveyed, to the defender, has no title to challenge the trust-disposition and deed of settlement of the deceased, so far as it conveys or relates to the said lands. The pursuer's title to sue is excluded by the disposition and settlement of William Dunn.” There is a second objection to the title to sue in regard to the dominium utile of Boquhanran, but that is mixed up with the merits, and if we repel the first objection it will not be necessary for us to consider that. If the first plea is not a good one against the title of the pursuer he is entitled to sue to some effect or other, so that the question of the dominium utile of Boquhanran is not before us. In order to ascertain whether the pursuer possesses the character of an heir of provision thus libelled on, and whether that character gives him a good title to sue, it is necessary to go back to the deed of William Dunn, and to ascertain the position of Mr Dunn Pattison under it. The view of the Lord Ordinary is expressed in his last finding, where he finds in point of law (his Lordship read the judgment, which is quoted in the narrative). There seems to me to be two grounds adopted by the Lord Ordinary for denying to the pursuer the title which he libels. (1) Because of the conveyance in William Dunn's deed to Alexander, and his heirs and assignees whomsoever; and (2) because Alexander Dunn, by the exercise of special powers, must be held to have excluded the pursuer's title and interest. It appears to me that the interlocutor of the Lord Ordinary proceeds upon a misapprehension of the judgment which we previously pronounced in this case. We were of opinion that the conveyance in William Dunn's deed to Alexander Dunn and his heirs and assigns whomsoever, was controlled by what occurred in an after part of the deed, and, as we thought, of the dispositive part of the deed, in which it was provided that, in certain events, this conveyance to the heirs and assignees of Alexander Dunn should not take effect. It was provided that if Alexander should succeed to the estate, and should die without issue, and should not dispose of the estate in his lifetime, and should make no settlement by mortis causa disposition, then certain persons are introduced as heirs of provision; and, in particular, it is provided that if these four conditions are purified, the lands in the parish of Old Kilpatrick, and the lands of Mount Blow and Dalmuir, and superiority of Boquhanran, &c., shall devolve on the eldest son of Mrs Janet Park or Pattison. It is in virtue of this substitution or devolution that Mr Dunn Pattison pursues the present action; and I think therefore that, in conformity with our first judgment, we must hold that the conveyance to Alexander Dunn is not sufficient to exclude the pursuer's title or his claim as an heir of provision, if these four conditions are purified. But, further, the Lord Ordinary says that an exercise by Alexander Dunn in lecto of certain special powers conferred upon him by William Dunn, excludes the pursuer's title. In that also I cannot agree with the Lord Ordinary. Alexander Dunn was full fiar—was so full a fiar that he could have no faculty; he had unlimited powers, and could have no special powers. Therefore, in executing this deed, he was exercising not special powers, but his jus disponendi. It was contended, further, in support of the judgment of the Lord Ordinary, that although what Alexander did was not the exercise of a faculty, his deed is good as a conveyance of the moveable part of the successsion of William Dunn; and therefore it is not strictly accurate to say that Alexander Dunn died intestate; and it is only in the event of intestacy,

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among other things, that the conditional substitution in favour of Mr Dunn Pattison comes into operation. It appears to me that this proceeds upon a false construction of the settlement of William Dunn. The event of Alexander's dying intestate, as a condition of the substitution, seems to me to mean dying intestate as regards each of the special subjects respectively destined to the different substitutes. (His Lordship here read the clause in William Dunn's deed in support of this construction). It surely cannot be maintained that if Alexander had availed himself of his right so far as to have sold a separate subject belonging to William Dunn, that that would have evacuated the other substitutions. But, in the second place, it is contended that Alexander Dunn did not die intestate, but left a deed disposing of his whole heritable and moveable estate. If William Dunn intended to confer, and did confer, on his brother Alexander a power of defeating these substitutions by a deed in lecto, that is a good argument. But if no such power was conferred, I cannot see any good in the argument, because a deed executed in lecto is inoperative against an heir of provision; and it is absurd to say that an unavailing deed shall be a good objection to the pursuer's title to sue. That is just reasoning in a circle. But if William Dunn intended to confer, and did confer, on Alexander a right to defeat these substitutions by a deed executed on deathbed, the defender must prevail. That question must be answered by a reference to William Dunn's deed; and certainly this is clear on the face of William Dunn's deed, that notwithstanding his desire to make a substitution in favour of the persons named, he was most anxious to preserve his settlement from even the appearance of derogating from the full right of dominium, vested in Alexander. It was intended that Alexander should have unlimited powers, not special powers, but it was not intended that he should be exempted from any law that was applicable to other fiars. His Lordship proceeded to say that it was unnecessary to consider how far any person could abrogate the public law of deathbed—that if, in addition to the four conditions mentioned in William Dunn's deed, William had given Alexander the power of evacuating the substitutions on deathbed, he might have done so; but there was no evidence that he intended the exercise of any such special powers, and he had certainly not conferred them.

The other Judges concurred.

The Court accordingly repelled the defender's objection to the pursuer's title to sue, and sustained the latter. All the defenders, who maintained the objection to the pursuer's title, were found liable in expenses to the pursuer. At the close of the advising, Mr Shand, for Mr Dunn Pattison, moved the Court, on the ground of the distress that was prevailing in the village of Duntocher, by reason of the subsistence of the litigation, and the consequent continued interruption of the working of the mills, to take up the remainder of the cause without remitting it back to the Lord Ordinary to dispose of the other pleas on the merits; and in the special circumstances the Court assented to the motion, and promised a hearing in May.

Counsel:

Counsel for the Pursuer—The Solicitor-General, Mr Clark, and Mr Shand. Agents— Messrs Dundas & Wilson. W.S.

Counsel for the Defenders— Mr Gordon, Mr Hector, Mr Gifford, Mr Fraser, Mr Lee, Mr Ivory, Mr Anderson, Mr Watson, and Mr Gloag. Agents— Messrs Murray & Beith, W.S.; Maconochie & Hare, W.S.; A. G. R. & W. Ellis, W.S.; Webster & Sprott S.S.C.; and Mr John Ross, S.S.C.
1866