Scottish Court of Session Decisions

The question under this special case was whether the trust-deed of the late Mr Hardy, farmer, Muirhouse, carried the lease of the farm of Muirhouse to his trustees. This deed was holograph of the granter, and after the nomination of trustees, gave them full power “to do everything necessary for the comfort of my wife and family; that they entirely take charge of the farm, all means and moveables, until the youngest is twenty-one years of age, and then to be an equal division … The whole arrangements are to be wholly through the trustees. They shall also have power to retain or give up the farm, as they see it of most advantage to the family.”

The lease of the farm was in favour of “William Hardy and his heirs, the eldest heir-female, on the failure of heirs-male, succeeding without division.”

Mr Hardy was survived by his wife and two daughters. The factor loco tutoris of the elder daughter claimed the lease as heir.

Scott for the trustees.

H. J. Moncreiff for Mrs Hardy.

Keir for Misses Hardy's factor.

The case of Pitcairn, Feb. 25, 1870, 8 Macph. 604, was referred to in the discussion.

The Court unanimously held that the settlement was sufficient to carry the lease of the farm. Before the Act of 1868, the word “dispone,” or words of de presenti conveyance, were required to convey heritage. That Act did not render a disposition of moveables a disposition of heritage. It did not change the meaning of words. The case of Pitcairn was conclusive of this, as in that case the First Division held that the word “effects” could not be construed to include lands. But in the present case the granter of the disposition intended to convey the lease of the farm to his trustees, who were empowered to give up the lease if they thought it right to do so. It was not possible to give it up unless they had acquired it.