Scottish Court of Session Decisions

Observations ( per Lords Cowan and Neaves), repudiating the authority of the case of Hamilton v. Hamilton as reversed by the House of Lords (1724).—Robertson's Appeals, 493.

This action of declarator, constitution, and adjudication in implement mas against William Young, as heir of the late Joseph Young of Dunearn, by (1) Peter James Gavin and others, the testamentary trustees of the deceased William Simson Young (the defender's father); (2) David Young; (3) Margaret Meldrum Young, children of the deceased Thomas Young; and by (4) Joseph Matheson Purvis; (5) Jessie Mary Purvis; and (6) John Murray Purvis.

The summons concluded for declarator that the said Joseph Young died on or about 17th November 1864 without leaving issue, and also for declarator that the obligations contained in the deceased Joseph Young's settlement in favour of the said deceased William Simpson Young vested in the latter during his lifetime, and were transmitted by his settlement to his said trustees. The summons further concluded that, in implement of the obligation contained in the settlement of the deceased Joseph Young, the defender, as his heir, should be ordained to make up his title to the deceased's estates, and convey them to the pursuers. There was also the usual alternative conclusion to meet the case of the defender renouncing or failing to convey.

The pursuer's case was based entirely on the terms of Mr Joseph Young's settlement, under which they maintained a personal right to the lands vested in William Simson Young and the individual pursuers upon the death of the testator.

The following are the important parts of Mr Young's settlement:—

“I, Joseph Young of Dunearn, in order to regulate the management and distribution of my means and estate after my decease, and for the love and favour which I have and bear to the persons after-named and designed, and for other good causes and considerations, do hereby give, grant, assign. alienate, and dispone to and in favour of myself and the lawfully-begotten child or children of my own body, equally between them, and to their assignees or disponees, whom failing to William Simson Young,

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David Young, Margaret Meldrum Young, and Helen Young, residing in Leith, my cousins, children of the deceased Thomas Young, merchant in Leith, two third-parts or shares; and in,the event of any of these my disponees dying without leaving lawful issue, or disponing or assigning their share, his, her, or their shares shall go to and belong equally to the survivors or survivor, or the lawful children of the said survivors or survivor; and to John Purvis junior, merchant, Singapore, Joseph Purvis, merchant there, and Jessie Mary Purvis, presently residing in Edinburgh, my cousins, children of John Purvis, merchant in Singapore, one third-part or share, and to their respective heirs and assignees whomsoever, my whole means and estate, heritable and moveable, real and personal, wherever situated or addebted, which shall belong or be addebted to me at the time of my death, with the whole vouchers and instructions of the said moveable and personal estate, and the writs and evidents of said heritable estate.”

The clause of obligation to infeft was in these terms:—

“Moreover, I oblige myself and my heirs and successors, to infeft and seise the said William Simson Young, David Young, Margaret Meldrum Young and Helen Young, and the survivors or survivor of the said disponees, or the lawful children of the said survivors or survivor; and the said John Purvis junior, Joseph Purvis and Jessie Mary Purvis, and their respective heirs and assignees, in the whole lands and other heritages above disponed requiring infeftment; and for that purpose to grant all deeds and conveyances that may be necessary: But always with and under the burden of my lawful debts and obligations, payment of my funeral expenses, and of such gifts or legacies as I may think proper to leave by any deed or writing to be executed by me at any time of my life: And I hereby nominate and appoint the said William Simson Young. David Young, Margaret Meldrum Young, and Helen Young, and the survivors or survivor of them, and the lawful children of the survivors or survivor, and the said John Purvis junior, Joseph Purvis, and Jessie Mary Purvis, to be my sob executors: And I reserve full power to alter, innovate, or revoke these presents in whole or in part: And I dispense with the delivery, and I reserve my liferent right, and I consent to registration hereof for preservation. In witness whereof,” &c.

The pursuers averred, and it was not disputed, that Mr Joseph Young died without leaving issue, and was survived by William Simson Young and the other beneficiaries mentioned in the deed. William Simson Young died on 12th August 1865, leaving a mutual general trust-disposition and settlement conveying to the pursuers Peter James Gavin and others, as trustees, his whole heritage of every description.

Defences were lodged for the defender William Young, a pupil, and a tutor ad litem was appointed to him.

The defender pleaded—

1. The pursuers have no sufficient title, at least they have not set forth any sufficient title, to sue the present action, or to obtain decree in terms of the conclusions thereof. 2. The late William Simson Young being only a substitute heir of provision under the disposition and settlement of the late Joseph Young, and having died without being vested, by service or otherwise, with any title to the subjects described in the conclusions of the summons, he could not and did not transmit any title thereto to the trustees named in the trust-disposition and settlement executed by him and his spouse. Et separatim, the defender, being himself the substitute-heir of provision next in order to the said William Simson Young under the said Joseph Young's disposition and settlement, is entitled in his own right to the share of the subjects in question, which is said to have fallen to the said William Simson Young, and is under no obligation to give effect to William Simpson Young's trust-disposition and settlement. 3. The remaining pursuers being, according to the terms of the disposition and settlement of the late Joseph Young, mere substitute-heirs of provision, and having alleged no active title by service or otherwise to the subjects in question, they are not entitled either to sue the present action, or to succeed in it. 4. As the defender does not represent, and is under no obligation to represent, the late Joseph Young as heir of line or conquest, and as the pursuers have no good grounds of action, he is entitled to absolvitor.

The Lord Ordinary ( Ormidale), on 15th March 1867, pronounced this interlocutor:—

“Finds that the deceased Joseph Young, by his disposition and settlement, dated 7th May 1858, libelled on, alienated and disponed his whole means and estate. heritable and moveable, which should belong to him at the time of his death, to and in favour of himself and of the lawfully-begotten child or children of his body, equally between them, and to their assignees or disponees, whom failing to William Simson Young. now deceased, whose trustees are pursuers, and to the pursuers David Young, Margaret Meldrum Young, and Helen Young, two-third parts or shares; and, in the event of these, his disponees, dying without leaving lawful issue, or disponing or assigning their shares, his or her share should go, and belong equally to the survivors or survivor, or the lawful children of the survivors or survivor, and to the pursuers John Purvis junior, Joseph Purvis, and Jessie Nary Purvis, one-third part or share, and to their respective heirs or assignees whomsoever: Finds it is admitted that the said deceased Joseph Young died on or about the 17th of November 1864, unmarried and without leaving lawful issue of his body: Finds it is stated by the pursuers. the trustees of the said now deceased William Simson Young, that he, having survived the said Joseph Young, died on or about the 12th of August 1866, and that it is not stated by them that he had expede any service as substitute-heir of provision or otherwise to the said Joseph Young, or that he had made up any title whatever to the heritable estate, or any part thereof, which had been alienated and disponed as aforesaid by the said disposition and settlement of the said Joseph Young; but that, on the contrary, it was expressly admitted at the debate that no such service was expede or title made up: Finds also that it is not alleged by the other pursuers that they have expede any service to the said deceased Joseph Young, or made up any title whatever to the foresaid heritable properties or estate, or any part thereof; and finds that no such service or title has been produced or founded on by them: Finds in these circumstances, that the said now deceased William Simson Young was only substitute-heir of provision under the disposition and settlement of the late Joseph Young, and having died without being vested by service or otherwise with any right or title to the heritable properties or estate referred to and described in the conclusions of the action, or any part thereof, he did not transmit any title thereto to the pursuers,

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his trustees; and, therefore, to that effect and extent sustains the plea in defence, and in respect thereof assoilzies the defender from the conclusions of the summons, so far as it is at the instance of the said William Simson Young's trustees, and decerns: And, in regard to the other pursuers, finds that they also are substitute-heirs of provision to the said Joseph Young under his disposition and settlement, and have not averred or produced any sufficient title to sue or maintain the action, and therefore, quoad them, and to that effect and extent sustains the pleas in defence, and in respect thereof dismisses the action, and decerns: Finds the defender entitled to expenses.” &c.

“ Note.—The question discussed before the Lord Ordinary was, Whether the late William Simson Young and the other pursuers were to be viewed and treated as the direct and immediate disponees of the late Joseph Young, or conditional institutes under his disposition and settlement, or as substitute-heirs of provision merely to him under that deed? If the former, as was contended for by the pursuers, a personal right and title to the properties in question vested in William Simson Young and the other pursuers on the death of Joseph Young without issue; but if, on the other hand, it is to be held, as was contended for by the defender, that William Simson Young and the other pursuers were merely heirs of provision substituted to Joseph Young as the institute under the destination in his disposition and deed of settlement, it appears to the Lord Ordinary necessarily to follow, and indeed was not disputed, that the result the Lord Ordinary has arrived at is correct.

“That the late Joseph Young was, according to the terms of the destination referred to, the institute or disponee to whom the properties in question were in the first instance conveyed, cannot be questioned; and that he survived for some time the execution of his disposition and settlement could not of course be denied. If, therefore, the properties had been so disponed to Joseph Young by any deed, not being a mortis causa settlement, there could be no doubt that the personal right and title to the properties would be in hæreditate jacente of him on his death, and that the late William Simson Young and the pursuers could not take up or become vested in that personal right or title except by general service to Joseph Young, as heirs of provision substituted to him.

“But the pursuers relied on the circumstance of Joseph Young's disposition and settlement being a mortis causa deed, and on the peculiarity of many of its clauses, denoting, as they maintained, that it was not intended to have, and cannot be held as having had, any effect until after the granter's death;and, in this way, it was argued for the pursuers, that Joseph Young himself neither did nor could take anything under the deed, and, as he left no issue of his body, they on his death stood, with reference to the destination in his disposition and settlement, in the position of direct or immediate disponees or conditional institutes, in whom a personal right and title to the properties and relative obligations in question then vested, and that not only was there no necessity for a general service by them to Joseph Young, but that any such service would have been inept and of no avail. In support of this view, the pursuers cited the cases of Colquhoun v. Colquhoun, 17th February 1831, 5 Sh., W. and S., 32, and 8th July 1831, 9 Sh., 911; and Fogo v. Fogo, 28th February 1840, 2 D., 651; 22d June 1841, 2 Robinson, 440; 11th March 1842, 4 D., 1063; and 18th August 1843, 2 Bell's Appeals, 195.

“It appears to the Lord Ordinary that the contention of the pursuers is in founded, and that the authorities relied on by them are inapplicable to the present case.

“If Joseph Young, in place of disponing his heritable estate, as he did, to himself and the heirs of his body, whom failing to the pursuers, had made it in favour of some individual nominatim, whom failing to the pursuers, and if such individual, who would in that case be the institute, had predeceased him without the deed having been ever delivered to him or otherwise made operative in his favour, then the pursuers would have been in the position of conditional institutes, and have been vested in a personal right and title to the properties on the death of Joseph Young as such conditional institutes, and the authority of the cases of Colquhoun and Fogo would have been in point. But here Joseph Young, by his disposition and settlement, instituted himself as first disponee, and he necessarily took under it, and became vested in the personal right and title to the properties thereby conveyed; and if this be so, it of course follows that, at his death, the personal right and title which had been thus vested in him did not ex ipso transmit to the pursuers, but remained till taken up by the proper service in his hæreditas jacens.

“In conformity with this view, Mr Erskine states (Institutes, iii, 8, 73) that ‘a service as heir to one who was not at his death in the right of the subject intended to be carried, is improper and ineffectual. A settlement, therefore, or disposition in which the granter does not first institute himself, but makes over the subject from himself to his son, whom failing to a stranger, can be no foundation for a service by the substitute as heir of provision to the granter. For, although the feudal right of fee of the estate remained with the granter notwithstanding the disposition, yet the personal right of the subject, which is the only thing conveyed by the disposition, did not continue to the granter, and so cannot be carried by a service as heir to him.’ So also, in conformity with the same doctrine, Professor Bell (Principles, sect. 1836), says that ‘a disposition to the granter himself, whom failing to A B, followed by infeftment, vests the fee in the granter, and on his death A B must enter by special service as heir of provision to him.’ And in the next section (1837) the professor goes on to explain that ‘where in such a case infeftment has not followed on the disposition, service is still necessary in the person of A B. But there is no place for a special service to take up the right under the disposition. The right to the unexecuted procuratory or precept contained in the disposition being personal must be taken up by a general service’ (sec. 1888). ‘Where the nominatim substitution is not immediate (as in a destination to A and his heirs, whom failing to B), the necessity for service by B has never been doubted, and that service must be special if the institute have taken infeftment’ (sec. 1839). ‘Where the disposition is not to the granter himself, but to the heirs-male of the granter, whom failing to a nominatim, and there are no heirs-male of the granter, this is not held a conditional institution of A, and he must serve heir of provision in special to the grantre’ To the same effect do the late Mr Sandford (Treatise on Entails, 492) and Professor Menzies (Lectures, 2d ed., p. 758) state the law. And all of these learned authors cite various decided cases in support of

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their statements. Reference may be made in particular to the cases of M'Culloch in 1731, Mor., 14,366; Creditors of Carlton v. Gordon, 8th February 1748, M., 14,366; Livingstone v. Lord Napier, in 1762, M., 15,409 and 15,418; and Peacock v. Glen, 22d June 1826, 4 Shaw, 742. Although the decision in the last of these cases appears to have turned a good deal on a point which was not founded on by the defender here, the principles of law and conveyancing on which the Lord Ordinary has proceeded were expressly referred to as being undoubted by the learned Judges in the course of their opinions.

“Nor has the Lord Ordinary found anything in the reports of the cases of Colquhoun and Fogo opposed to the law as adopted by him, and illustrated in the cases referred to; on the contrary, the law as so adopted, and the cases referred to, appear to have been distinctly recognised as unchallengeable in Fogo's case, especially by Lords Moncreiff, Cockburn, Mackenzie, and Cuninghame, whose opinions met with the approval of the great majority of the Court, and were given effect to in the judgment pronounced. See particularly pages 1106, 1107, 1109, 1123, 1125, and 1129 of the report of the case in the fourth volume of Dunlop.

“The pursuers founded strongly on the deed in the present instance being a mortis causa settlement, on its being a conveyance of the universitas of the granter's estate, on their being alluded to throughout the deed as ‘disponees,’ and on its containing an obligation to infeft directly and expressly in their favour as disponees. But many, if not all, of these peculiarities are to be found in the decided cases which have been referred to; and, indeed, some of these cases appear to the Lord Ordinary to have been more unfavourable for the principle given effect to in them and by the prefixed interlocutor than the present. Thus, in the case of the Creditors of Carleton v. Gordon, the deed was a mortis causa settlement of the universitas of the granter just as here; and it was held that the fee of the property in dispute was in the granter at his death, and that a service was necessary to take it up, although the disposition was not to himself directly and expressly as institute, but to and in favour of the heirs-male of his body, whom failing to John Gordon. But there having been no heirs-male of the granter's body, the fee was held to have remained with himself, and that John Gordon, who survived him, was merely an heir of provision substituted to him, and bound accordingly to make up his title by service to the granter. In the case also of Peacock v. Glen, the deed was a mortis causa settlement, and it contained both precept and procuratory, and, in the latter, the party, who was found to be an heir of provision merely, was expressly alluded to as a ‘disponee.’

“On the other hand, there was cited for the pursuer, besides the cases of Colquhoun and Fogo, the case of Steele v. Young, 23d January 1823, 2 Sh., 146; but that was a very special case, and in no view of it does the Lord Ordinary see how it affords any aid to the pursuer. In some respects, indeed, it might be referred to as a case favourable to the defender; for there not only was the deed a mortis causa settlement, but that portion of it on which the judgment turned was a conveyance in general terms, just as in the present instance, of the universitas of the granter's estate; but it does not appear from the report that this circumstance was of itself held to affect the question of title which was raised and determined.

“The Lord Ordinary, however, understood the pursuers chiefly to rely on the circumstance of the obligation to infeft in the present case—not the precept of sasine or procuratory of resignation, for there is none such-being directly, expressly, and exclusively in favour of the late William Simson Young and the other pursuers, as the granter's disponees; and they cited, in support of their argument founded on that circumstance, and as illustrative of the efficiency of such an obligation, the case of Renton v. Anstruther ( 1 Bell's Appeals, p. 129, and 2 Bell's Appeals, p. 214, and more especially pp. 226–7). But really that case has no bearing on the present, the question there being whether a party having a mere personal right to lands could validly make a procuratory of resignation the basis of an entail. Nor can the well established principle of lam be overlooked, that the dispositive clause is the dominant and ruling one, to which all the others are held to be subordinate and accessory merely. Accordingly, in Shanks v. The Kirk Session of Ceres, 27th January 1797 ( M., 4295), where the fee of a property was given to one person by the dispositive clause of a deed, and the precept of sasine contained warrant for infefting a different person in the fee, the right of fee was held to be determined by the dispositive clause, and it was observed that the effect of the discrepancy was not to vest the fee in the party named in the precept, because there was no act of transmission to him, but merely to make the true disponee's right still personal, inasmuch as the mistake in the precept prevented his converting it into a real right by infeftment. So also, in the case of Forrester v. Hutchinson, 11th July 1826 ( 4 Sh., 824), where an estate was given by the dispositive clause to the disponee and heirs-male of his body, but the procuratory authorised resignation for new infeftment in favour of the disponee and the heirs of his body, the dispositive clause was held to rule and received effect. The Lord Ordinary cannot, therefore, allow himself to be affected by the circumstance of the obligation to infeft in the present case being directly and exclusively in favour of the late William Simson Young and the other pursuers, in place of being strictly in accordance with the dispositive clause.

“For the reasons now stated, the Lord Ordinary has, notwithstanding the very able and instructive argument which was addressed to him on behalf of the pursuers, found himself constrained to decide as he has done; and he may add that, having regard to the arrangements which appear to have been in the course of being carried into effect prior to William Simson Young's death, on the faith and assumption, apparently, that a right to a share of the properties in question had vested in him on the death of his cousin Joseph Young, it is with regret that he has been unable to arrive at any other conclusion. The Lord Ordinary, however, feels that to interfere with established and generally understood rules in matters of conveyancing and the making up of titles might lead to very perilous consequences.”

The pursuers reclaimed.

Gifford and Rettie for them argued-

1. According to the proper construction of the dispositive clause, William S. Young and the individual pursuers were conditional institutes, and not substitutes. The structure of the deed showed that the granter intended it not to have effect till the moment of death, at which date, if he had children, he was to be institute himself; if he had

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no children, William S. Young, &c., were to be institutes. The opinions of the large majority of the Judges in the case of Fogo, though no judgment proceeded upon the point, may now be regarded as settling that a mortis causa conveyance to a stranger who predeceases the granter carries no personal fee to him. From this it follows that there is no feudal necessity for a de presenti personal fee being given to any one in a mortis causa conveyance. It was, therefore, quite competent for the testator to frame the deed so as to suspend its effect till it should be ascertained whether he should die childless or not. The fact of the testator in all the subsequent parts of the deed calling William S. Young, &c., his “disponees,” showed the testator's intention to dispone to them subject to the condition si sine liberis which he had expressed. The natural reading of the clause was, “I dispone to myself and my children; failing children, I dispone to William Simson Young,” &c.; Colquhoun v. Colquhoun, 17th February 1831, Jurist, iii., 311, and 8th July 1831, p. 694; Fogo v. Fogo, 25th February 1840, xii., 369, and 18th August 1843, xvi., 6; Hamilton v. Hamilton, 10th June 1714, M., 14, 360, rev. 18th April 1724, Robertson's App., 493.

2. Even if the dispositive clause were read as giving the granter a personal fee during his life, and therefore as placing William S. Young, &c., in the position of substitutes, the obligation to infeft being directly in favour of William S. Young, &c., gave them, whenever the succession opened to them as substitutes, a good personal right to the lands. This obligation to infeft was an obligation on the granter and his heirs of line and of provision to complete a title, and convey to the substitutes named. If this obligation was a good obligation to any effect, being conceived in favour of William S. Young, &c., directly, no service was required to vest it in them, and no service was competent. It never was an obligation in favour of the granter, and therefore could not be taken out of his estate by service. The only question was, whether it was competent for the granter to impose this obligation to infeft the substitutes upon himself and his heirs? The fact of the granter having given a personal fee to himself by the dispositive clause did not prevent him from imposing any burden upon that fee. No doubt, the obligation to infeft must be read as conditional on the granter dying without issue, but this does not affect its efficacy when the condition was purified. The Lord Ordinary was wrong in supposing that there was a collision between the dispositive clause and the clause of obligation to infect. The two clauses were independent of each other. The obligation to infeft was obviously inserted for the purpose of enabling the nominatim substitutes to complete their title in the easiest manner without the necessity of service. There was not the slighest reason to suppose that the testator intended this obligation to infeft William S. Young, &c., to be conditional on their serving to the granter as heirs of provision. The only condition expressed or implied was the condition si sine liberis, and that having been purified, a pure obligation remained in favour of William S. Young, &c.- Ogilvy v. Ogilvy, 16th December 1817, F. C.; Stewart v. Stewart, 211 March 1815, F. C.; Gordon's Trustees v. Harper, 4th December 1821, 1 s., 185 (N. E., 175): Steele v. Young. 23d January 1893, 2 S., 146; Renton v. Anstruther, 28th February 1843, Jurist, xvi, 53; Buchanan v. Young, 13th March 1860, Jurist, xxxii, 418.

N. C. Campbell and Thomson for the defender answered-

1. By his disposition and settlement Mr Joseph Young disponed his estates to himself and, on his death, to his children, if lie had any, and failing them to William S. Young and others. In this way a personal right to the estate vested in the granter, and on his death that right required to be taken out of his hæreditas jacens by service. If he had left children, they must have taken up that right by service as heirs of provision, and those called failing them could riot be in a different position. William S. Young never served to the granter, and accordingly, no interest vested in him which was capable of being transmitted to third parties. The cases of Colquhoun and Fogo (supra) were not in point, as there the granter did not institute himself—Ersk., iii., 8, 73; Bell's Prin., sects. 1836–39; Sandford on Entails, 492; Menzies Lectures (2d ed.), 758; Bell's Lectures, 1023; M'Culloch v. M'Leod, 10th July 1731, M., 14, 366; Creditors of Carleton v. Gordon, 8th February 1748, M., 14, 366; Livingstone v. Lord Napier, 1762, M., 15, 409 and 15, 418; Peacock v. Glen, 22d June 1826, 4 S., 742 (N. E., 749).

2. The clause of obligation to infeft was part of the same deed as the dispositive clause, and it is a well established principle, that the latter is the dominant clause, to which the former must bend as auxillary— Shanks v. The Kirk Session of Ceres, 27th January 1797, M., 4295; Forrester v. Hutchinson, 11th July 1826, 4 S., 824 (N. E., 831).

At advising—