Scottish Court of Session Decisions

The parties to this Special Case were (1) Mrs Janet Dewar or Macdonald, widow of the deceased Alexander Macdonald, late door-keeper to the Faculty of Advocates; (2) Mary Macdonald, sister of the said Alexander Macdonald; (3) Cecilia Dewar, sister of the said Mrs Macdonald, mentioned of the first part; (4) Donald Stewart and John Murray, trustees and executors of the said Alexander Macdonald.

The said Alexander Macdonald, and his wife, the said Mrs Janet Dewar or Macdonald, the first party hereto, executed, upon 22d May 1852, a mutual disposition and settlement, whereof the following are the terms:—“We, Alexander Macdonald, of Her Majesty's General Post-Office, Edinburgh, and residing in No. 50 Thistle Street, Edinburgh, and Mrs Janet Dewar or Macdonald, his wife, also residing there, spouses, for the love, favour, and affection which we have and bear to each other, have mutually agreed to grant these presents in manner underwritten; that is to say, I, the said Alexander Macdonald, do hereby give, grant, assign, dispone, and convey, and make over from me and my heirs and successors, to and in favour of the said Janet Dewar or Macdonald, my wife, in case she shall survive me, and to her heirs, executors, or assignees whomsoever, all and sundry my means and estate, both heritable and moveable, of whatever nature or denomination, now belonging or addebted, or which may belong or be addebted to me at the time of my death in any manner of way.… and, in like manner, I, the said Janet Dewar or Macdonald, do hereby give, grant, assign, dispone, and convey, and make over from me, my heirs and successors, to and in favour of the said Alexander Macdonald, my husband, in case he shall survive me, and to his heirs, executors, and successors, all and sundry, my means and estate, heritable and moveable, of whatever kind or denomination, now belonging or addebted, or which may belong or be addebted to me at the time of my death in any manner of way … and we hereby severally nominate, constitute, and appoint the last survivor of us to be the sole executor and universal legatory of such one of us as shall predecease the other, hereby excluding and debarring all others from that office, with full power to the said last survivor of us to pursue for and enforce and realise our whole estate and others above conveyed, and, if necessary, to give up inventories of and to confirm our moveable estate in common form, and generally to do everything in the premises competent to an executor—reserving always to us and the survivor of us our liferent right and enjoyment of our whole estate and others above conveyed; and declaring that, in the event of any child or children being procreated of the marriage between us, our said whole estate and others above conveyed shall, after payment of our deathbed and funeral expenses, and all our just and lawful debts, on the death of the last survivor of us, be equally divided between such child or children, and their heirs, on attaining majority, share and share alike, in fee; and further, reserving full power to us during our joint lives, or to me, the said Alexander Macdonald, without the knowledge, concurrence, or authority of me, the said Janet Dewar or Macdonald, to alter, innovate, or revoke these presents, in whole or in part, as we jointly (or as he, the said Alexander Macdonald, by himself alone) may think proper.”

In pursuance of the reserved power to alter, innovate, and revoke contained in this deed, the said Alexander Macdonald executed four codicils, whereof the first, dated 16th October 1852, is as follows:—“I, Alexander Macdonald, designed in the foregoing disposition and settlement, in the exercise of the power to alter or revoke therein contained, do hereby leave and dispone” the residue of my means and estate, “after the death of the longest liver of myself, and Janet Dewar or Macdonald, my spouse, designed in the foregoing disposition and settlement, in two equal shares, between Mary Macdonald, my youngest sister, presently residing with my mother, and Cecilia Dewar, the youngest sister of my said spouse.”

The second codicil, dated 9th September 1861, contained a nomination of trustees in the following terms:—“I, Alexander Macdonald, designed in the foregoing disposition and settlement and codicil, in the further exercise of the reserved power contained in the said disposition and settlement in my favour to alter the same, do therefore hereby assign, dispone, convey, and make over from me, my heirs and successors, to and in favour of Donald Stewart, crier of the Parliament House, and residing in Cumberland Street, Edinburgh, and John Murray, writer, York Place, Edinburgh, and to the survivor or acceptor of them, as trustees for carrying out the purposes of the foregoing disposition and settlement and codicil, with this addition to and alteration thereon, All and whole my heritable and moveable estates, pertaining and belonging, or which may pertain or belong to me at the time of my death, with the whole vouchers and instructions thereof, and all that has followed or may be competent to follow thereon: And for that purpose I further hereby nominate, constitute, and appoint them, the said Donald Stewart and John Murray, and the survivor or acceptor of them, to be my sole executors or executor, with full power to them, or the survivor or acceptor of them, to pursue for, realise, and give up inventories of, and to confirm, my moveable estate, and generally to do everything competent to executors, but that in trust always, and for carrying out the purposes of said foregoing disposition and settlement and codicil, as therein provided, with this addition thereto, and declaring that it is my wish, and I hereby direct and appoint my said trustees and executors, or the survivor or acceptor of them, to hand over to Mary Macdonald, my sister, immediately after my death, my gold watch, chain, and seals, with the sum of £50 sterling in cash, and that over and above the other provisions made by me in her favour.”

The third codicil, dated 27th July 1867, disposes of a special subject, which had been acquired since the execution of the original deed, as follows:—“I, Alexander Macdonald, designed in the foregoing disposition and settlement and codicils, but now residing in No. 115 Rose Street, Edinburgh, in the further exercise of the reserved power in my favour contained in the said foregoing disposition and settlement to alter or revoke the same, and having since the date of that deed purchased and acquired the dwelling-house No. 115 Rose Street, in which I at present reside, I hereby assign and dispone to and in favour of Mrs Janet Dewar or Macdonald, my wife, all and whole the said house in No. 115 Rose Street, Edinburgh, being the second or top flat thereof, all as more particularly

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specified and described in my rights and titles thereof, together with my household furniture and plenishing therein, all as presently occupied and possessed by me, but that for her liferent use only, and on her death to be assigned and disponed by my trustees and executors to and in favour of Mary Macdonald, my sister, presently residing in Aberfeldy, Perthshire, and to her heirs and assignees whomsoever in fee, and that in addition to or over and above the provision made to her in the preceding codicil, executed by me on the 16th day of October 1852 years.”

The fourth and last codicil, dated 4th January 1868, alters the destination of the said special subject conveyed by the third codicil:—“I, Alexander Macdonald, designed in the foregoing disposition and settlement, and codicils following thereon, do hereby revoke and recall the provision of fee of the house No. 115 Rose Street, Edinburgh, made by me by the immediately preceding codicil, dated the 27th July 1867, in favour of Mary Macdonald, my sister therein named, and her heirs whomsoever, and declare said provision to be void and null, and that the said Mary Macdonald, my sister, shall only be entitled to the liferent of said house in the event of her surviving Mrs Janet Dewar or Macdonald, my wife, the heirs whomsoever of the said Mary Macdonald, my sister, being hereby expressly debarred and excluded from all benefit or participation therein, or in my estates, heritable and moveable, in any manner of way whatever, my trustees being bound, as soon as convenient after the death of the survivor of my said wife and sister, to convey to or dispose thereof for behoof of Mrs Catherine Macdonald or Watt, wife of and residing with James Watt, gardener in Oawaru, New Zealand, in liferent, and to her children, equally between them, in fee.”

The parties to this Special Case were the beneficiaries under this settlement, with its accompanying codicils, seeking to have their respective rights ascertained, and the trustees, desirous, of ascertaining the duties which devolved on them as such. Mrs Macdonald, the first party, claimed the liferent use of the household furniture and plenishing, and the fee of the residue or remainder of the other personal estate of her said husband. Miss Mary Macdonald, the second party, on the other hand, claimed the whole of the said furniture and plenishing after the death of Mrs Macdonald, the first party; and half of the residue of the personal estate in fee after the said first party's death, in addition to a legacy of £50.

Miss Cecilia Dewar, and the trustees, the third and fourth parties, maintained that Mrs Macdonald was not entitled to either the liferent or the fee of the said residue; or, at all events, that she was only entitled to a liferent thereof, and that the fee of that residue belonged to the said second and third parties?

As regards the house No. 115 Rose Street, there was no serious dispute as to its destination in terms of the third and fourth codicils.

The questions for the opinion and judgment of the Court were—

“1. Whether the first party hereto is entitled to the fee of the residue of the personal estate other than the furniture and plenishing in the house No. 115 Rose Street ?

2. If not entitled to the fee, is the said first party entitled to a liferent of said residue, in addition to a liferent of the house 115 Rose Street, and of the furniture and plenishing therein?

3. If the first party be held entitled only to a liferent of the residue of the personal estate, are the said second and third parties entitled to the fee thereof?

4. Is the second party entitled to (1) a liferent of the house after the first party's death? (2) the whole of the furniture and plenishing in fee after the first party's death? and (3) half of the residue in fee after the first party's death?”

In the absence of Mrs Watt and her children the Court refused to entertain any consideration of the third and fourth questions. The argument was therefore confined to the first two.

The Solicitor-General (A. R. Clark), for Mrs Macdonald, argued—There can be no doubt that the original deed did give Mrs Macdonald the fee of the residue. The question is, has that fee been taken away; and if so, by what deed? No doubt there is the codicil of 1852, seeming to convey the residue of the estate to Mary Macdonald and Cecilia Dewar. But does that revoke the first deed. I think not, because this codicil gives a fee, not at the granter's death, but only at the death of the longest liver of himself and his wife. This was therefore not a revocation of the original settlement and a new grant, but a substitution of these two ladies to Mrs Macdonald. The codicil of 1861 shews from its language that this was the intention of the testator, while the codicils of 1867 and 1868 deal with a special subject, and do not contradict the original deed.

Rhind, for Mary Macdonald, pleaded that the codicil of 1852 did effect an alteration upon the original settlement, that no mere substitution was intended, but an entirely new destination of the fee of the residue of the estate. He conceded to Mrs Macdonald a liferent of that residue, and to Cecilia Dewar an equal share in the fee, but claimed the other half of the fee upon Mrs Macdonald's death.

Fraser, for Cecilia Dewar and the Trustees, substantially adopted the argument of the second party.

At advising—