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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Robert Taylor Traquair and His Curators, and Miss Agnes Martin [1872] ScotLR 10_36_1 (1 November 1872)
URL: http://www.bailii.org/scot/cases/ScotCS/1872/10SLR0036_1.html
Cite as: [1872] ScotLR 10_36_1, [1872] SLR 10_36_1
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SCOTTISH_SLR_Court_of_Session
Page: 36↓
Court of Session Inner House First Division.
Special Case—Robert Taylor Traquair and His Curators, and Miss Agnes Martin.
Facts:
Two sisters, by a mutual settlement bearing to have been granted from their affection to one another, conveyed each their estate, heritable and moveable, to the other in liferent, if she should survive her, and to a nephew of the granters in fee. The granters reserved the liferent of the estates respectively conveyed by them, and also power “at any time during our joint lives, to alter, innovate, or revoke these presents, in whole or in part.” After the death of one of the sisters, the survivor executed a disposition, by which she conveyed the household furniture, which was her own, and a house of which the titles stood in the joint names of her sister and herself, to M. in liferent, and the nephew in fee. held, in a question between M. and the nephew, that the destination of the fee of the respective estates in the mutual settlement was purely testamentary, and that the survivor could alter the same in so far as regards her own estate, and that, consequently, M. was entitled to the liferent of the household furniture, and to the liferent of one-half pro indiviso of the house, but that she was not entitled to the liferent of the other half pro indiviso of the house, which belonged to the deceased sister. Held, further, that M. was not entitled to any surrogatum out of the surviving sister's general estate, in consequence of the partial failure of her bequest.
Mrs Janet Taylor or Stewart, widow of Thomas Stewart, Esq., of Clunie, Perthshire, and her sister Miss Joan Taylor, executed a mutual disposition and settlement, dated 4th March 1852. By this deed, which bears to be granted “from our affection for each other, and other good causes,” each sister conveys to the other in liferent, for her liferent use allenarly, and to their nephew Robert Taylor Traquair, and his heirs, executors, and assignees in fee, her whole heritable and moveable estate. The deed contains the following clause—“reserving always to us, and each of us, our respective liferents of the estates and effects above conveyed, with full power to us, at any time during our joint lives, to alter, innovate, or revoke these presents, in whole or in part, as we may see proper; but declaring always that the same, in so far as not altered, innovated, or revoked as aforesaid, shall be effectual though found lying by either of us at the time of her predecease, or in the custody of any other person for our behoof, with the delivery whereof we hereby dispense for ever.”
Mrs Stewart's husband died in 1813, and after that event she and her sister Miss Joan Taylor resided in Edinburgh together. In 1854 Mrs Stewart purchased the, house 20 Dublin Street, in which she and her sister resided. The price was paid by Mrs Stewart, but the conveyance was taken in favour of her and her sister.
Miss Taylor died on 13th February 1859.
In August 1863 Mrs Stewart executed a holograph writing in favour of Agnes Martin, who had been long her servant, in which she bequeathed a quantity of furniture in the house 20 Dublin Street, and a number of articles particularly described, including a gold watch and some silver plate. On 30th July 1867 Mrs Stewart executed a disposition, by which she conveyed her whole household furniture, described in an inventory, and also the house in Dublin Street, to Agnes Martin in liferent, and Robert Taylor Traquair in fee. The furniture bequeathed by the holograph writing of 1863 was included in the inventory, but not the gold watch and silver articles. The deed was delivered by Mrs Stewart to her agent for behoof of the liferenter and fiar respectively.
Robert Taylor Traquair is now dead, and is represented by his son Robert Taylor Traquair, who, with his curators, is the party of the first part to this case, and Miss Agnes Martin is the party of the second part.
Mrs Stewart died on 29th December 1869. In her pocket-book after her death was found a deposit-receipt for £346 in the name of Agnes Martin. This sum was deposited by Mrs Stewart out of her own funds, but parties were agreed that she had deposited it as a donation to Agnes Martin, and that she had so stated both to Agnes Martin and her own agent. The estate left by Mrs Stewart amounted to about £4000.
The questions submitted to the Court were the following:—
“1. Is Agnes Martin, the party hereto of the second part, entitled to the gold watch and silver articles bequeathed by the holograph writing, No. 2 of the Appendix?
“2. Is she also entitled to the liferent of the house and household furniture, in terms of the disposition No. 3 of Appendix?
“3. Should the foregoing question (2) be answered in the negative, is she entitled to a surrogatum out of Mrs Stewart's general estate, equivalent to the value of her liferent of said house and household furniture?
“4. Is she entitled to the said sum of £346, and interest thereon, contained in the deposit-receipt before quoted?”
In regard to question (2) (which was the most important), it was argued for R. T. Traquair and his curators, that Mrs Stewart had no power to execute the disposition of 1867, on the ground that the power of revocation contained in the mutual settlement executed by her and her sister in 1852 could only be exercised by the granters in their joint lives— Macmillan, Nov. 28, 1850, 13 D. 187; Craich's Trustees, June 24, 1870, 8 Macph. 898.
For Miss Agnes Martin, it was argued that the destination of the fee of Mrs Stewart's estate to her nephew by the deed of 1852 was purely testamentary, and could therefore be altered by her after her sister's death. Otherwise, Miss Martin was entitled to a surrogatum out of Mrs Stewart's general estate, on the principle of legatum rei alienœ.
At advising—
The second question is the most important, and it is most convenient to take it first. It depends on a disposition executed by Mrs Stewart, by which she conveyed to Agnes Martin in liferent, and to Robert Taylor Traquair in fee, her whole household furniture, as also a dwelling-house, consisting of a flat in No. 20 Dublin Street. The granter reserves her own liferent, and the deed is obviously intended to come into operation only after the death of the granter. Upon this deed registration has taken place in favour of Agnes Martin as liferenter, and Robert Taylor Traquair as fiar, which puts them in the same position as if they were infeft.
As regards the moveables contained in the deed, their identity is ascertained by an inventory which forms part of the deed. These moveables were undoubtedly in the possession of the granter at the time of her death, and unless there was some restraint on her power of disposing of them, there is no doubt of the validity of the conveyance. The house stands in a somewhat different situation.
The first argument maintained for the party of the first part, who is son and heir of the Robert Taylor Traquair mentioned in the deed, is that Mrs Stewart was not in a condition to execute this deed at all, in consequence of a mutual settlement executed in 1852 by her and her sister Miss Taylor. In this deed it was set out that the two sisters “from our affection for each other, and other good causes, have agreed to grant these presents.” That is the narrative or inductive clause of the settlement. Mrs Stewart, in the first place, conveys to her sister Joan Taylor, in case she shall survive her, in liferent, her whole heritable and moveable estate; Miss Taylor, in like manner, conveys her whole estate in liferent to Mrs Stewart if she shall
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It is said that after the death of Miss Taylor it was not in the power of Mrs Stewart to alter this deed, and that her estate, heritable and moveable, necessarily fell to the person designed as fiar; in short, that after the death of Miss Taylor she could not dispose of any part of her estate which she had conveyed to her sister in liferent and her nephew in fee.
It is beyond dispute that two persons may so contract by mutual settlement as to bind one another in the way contended for. Such a deed puts the survivor in a very peculiar and unenviable position. But if they contract in such terms as to leave no doubt of their meaning, there is nothing illegal in such a contract, and the Court will give effect to it. The Court, however, will not readily presume from ambiguous words such a very unusual and extraordinary intention, and in this case I am quite unable to gather from the deed that the two sisters entertained any such purpose. It was very natural that, living together as they did, and having the same intentions with regard to a favoured nephew, they should embody their testamentary intentions in one deed. It will be observed that the inductive clause of the deed is the affection they bear to one another—a circumstance to show that its main purpose was that the survivor should enjoy the liferent of the entire estate belonging to both. But, in regard to the destination of the fee, the deed appears to me purely testamentary as regards the estate of each of them, and effectual to convey the estate of each sister mortis causa to the favoured nephew in fee. But as there is no express exclusion of the power of revocation of each sister in regard to her own estate, I cannot infer any such exclusion. I think that Mrs Stewart was quite entitled, after the death of Miss Taylor, by any proper testamentary paper, to dispose of her own moveable estate. It therefore appears that the disposition of 30th July 1867 must receive effect as a disposition to Agnes Martin in liferent of the moveables contained in the inventory referred to.
The heritable property stands in a different position. The house in Dublin Street did not belong to Mrs Stewart alone. It is admitted that the existing title was a disposition by Mr Graham Stirling “to and in favour of the said Mrs Janet Taylor or Stewart, and Miss Joan Taylor, her sister, in conjunct fee and liferent, and their heirs and assignees whomsoever, heritably and irredeemably.” The disposition, no doubt, bears that the price was paid by Mrs Stewart alone. But still the title was taken to the two sisters jointly, and they were in fact joint proprietors.
Reading the mutual disposition in the manner most favourable to the party claiming under the will of the survivor, I cannot hold that Mrs Stewart had any power to convey more than one-half of the house. The other half, belonging to Miss Taylor, was effectually conveyed to her sister in liferent and the nephew in fee. So far as regards Miss Taylor's half, the party of the first part is entitled to that. The other half passed in terms of Mrs Stewart's subsequent disposition to Agnes Martin in liferent, and Robert Taylor Traquair, the younger, in fee. This enables us to answer the second question.
In the third question we are asked to say Whether, in the event of the foregoing question being answered in the negative, Agnes Martin is entitled to a surrogatum out of Mrs Stewart's general estate, equivalent to the value of her liferent of the house and furniture? Now, the question, as put, does not require to be answered, because to a very large extent the disposition to Agnes Martin in liferent is effectual, but, in so far as regards the one-half of the house, it may require to be answered. I entertain no doubt that Agnes Martin is not entitled to any equivalent out of the general estate. It is not a case of legatum rei alienœ, where it is assumed that the testator knew that he was conveying the property of another. Mrs Stewart thought that the house belonged to her, and that she had power to convey it.
As regards the first question, it depends on the consideration of the holograph writing and subsequent disposition. The holograph writing conveyed a quantity of furniture and a gold watch, and certain other articles particularly described. The date of this holograph writing is August 1863. By the subsequent disposition of 1867 the whole of the household furniture belonging to Mrs Stewart is embodied in the inventory, and conveyed in liferent to Agnes Martin. To that extent the bequest of household furniture is altered, and instead of Agnes Martin receiving a portion absolutely as her own, she receives the whole of that contained in the inventory in liferent. But certain things are mentioned in the holograph writing which are not in the inventory of 1867. The question is, Whether the holograph writing receives effect as regards these? On that I have no doubt. The holograph writing is ineffectual only so far as it is superseded by the subsequent disposition. The first question must therefore be answered in favour of Agnes Martin.
As regards the sum of £346 there is no doubt. The deposit-receipt was in favour of Agnes Martin herself, though it was found in the repositories of Mrs Stewart, and was, so to speak, purchased with Mrs Stewart's money. But then it is admitted on behalf of Robert Taylor Traquair and his curators, that Mrs Stewart deposited the sum as a donation to Agnes Martin, and that she stated that she had done so both to Agnes Martin and also to her own agent Mr Skinner. I have no doubt that the sum belongs to Agnes Martin.
The other Judges concurred.
The Court pronounced the following interlocutor:—
“Find and declare, in answer to the first question, that Agnes Martin, the party of the second part, is entitled to the gold watch and silver articles bequeathed by the holograph writing. No. 2 of the Appendix: Find and declare, in answer to the second question, that the said Agnes Martin is entitled to the liferent of one-half pro indiviso of the house, and
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to the liferent of the whole household furniture, in terms of the disposition No. 3 of Appendix; But find that she is not entitled to the liferent of the other half pro indiviso of the said house, which belonged to the deceased Joan Taylor, and was conveyed by her to her sister Mrs Stewart in liferent, and Robert Taylor Traquair in fee, by the mutual deed of settlement No. 1 of the Appendix: Find and declare that, in answer to the third question, the said Agnes Martin is not entitled to any surrogatum or equivalent for the one-half of the house provided by the said disposition, No. 3 of Appendix, and to which she has been found not entitled: Find and declare, in answer to Fourth question, that the said Agnes Martin is entitled to the said sum of £346, and interest thereon, contained in the deposit receipt set forth in the case: and find no expenses due to or by either party.” Counsel for R. T. Traquair and his Curators—Balfour and Macdonald. Agent—William Skinner, W.S.
Counsel for R. T. Traquiar and his Curators— Balfour and Macdonald. Agent— William Skinner, W. S.
Counsel for Agnes Martin— Millar, Q.C., and Hall. Agents— J. & R. D. Ross, W.S.