Scottish Court of Session Decisions

This was an action of adjudication in implement, raised by the trustees of the late Gordon M'Leod of Glencassley, Sutherlandahire, and Lochbay in Skye, against his son and heir-at-law George William Leslie M'Leod, the summons in which concluded that he should procure himself served heir to his father, and then convey the whole estate to the testamentary trustees in terms of his father's testamentary disposition and the Titles Act of 1868. The defender resisted the action on the ground that the testament contained no valid or effectual conveyance in favour of the trustees either at common law or under the said Act.

The case came before Lord Shand, as Ordinary, who, on the 24th December 1874, issued the following interlocutor:—“Having considered the cause, Finds that, in virtue of the statute 31 and 32 Vict. c. 101, sec. 20, the trust-disposition and settlement dated 27th October 1863, and recorded in the books of Council and Session 22d January 1873, by the late Gordon M'Leod, Esquire of Glencassley, Sutherlandshire, and of Lochbay in the isle of Skye, conferred on the trustees nominated by said deed right to the heritable estate which belonged to the said Gordon M'Leod at the time of his death, and that the said deed is equivalent to a general disposition of such estate in favour of the said trustees: Therefore repels the defences, and ordains the defender, as only son and heir of the said deceased Gordon M'Leod, to procure himself, at the pursuers' expense, served and decerned as heir to the said Gordon M'Leod under the proper character or characters required by the investitures or writs and titles of and connected with the lands and other heritable estate and effects mentioned in the summons, which pertained to the said Gordon M'Leod at the time of his death, or by other legal method to obtain the full heritable and irredeemable right thereto established in his person; and that by decree of service and infeftment, or other legal method, according to the state of the rights thereof; and immediately on completing thereof, to dispone and convey the said lands and other heritable estate and effects to the pursuers, and the survivors and survivor of them, as trustees foresaid, and their assignees and disponees; and for that purpose to make, grant, subscribe, and deliver valid and efficient dispositions, assignations, and conveyances thereof in their favour, containing all usual and necessary

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clauses; and to deliver therewith the whole writs and title-deeds in his possession, in order that the full right of the same may be properly vested in the pursuers, as trustees foresaid, and the survivors and survivor of them and their foresaids, according to the true intent and meaning of the said trust-disposition and settlement, and obligation therein contained: Finds the parties respectively entitled to their expenses out of the truat-estate, and decerns ad interim.

“ Note.—This case raises a question of much importance, and attended with difficulty, as to the effect of the provisions of section 20th of ‘The Titles to Land Consolidation (Scotland) Act 1868,’ 31 and 32 Vict. c. 101, by which an important change was made on the rules of law relating to the forms of conveyances or deeds mortis causa, intending to settle the succession to heritable property in this country.

The pursuers of the action are the trustees and executors of the late Gordon M'Leod, who, at the date of his death, on 4th January 1873, was proprietor of the estate of Lochbay in the island of Skye, and of the estate of Glencassley in the county of Sutherland, under a deed of settlement written by himself, executed by him on 27th October 1863. After Mr M'Leod's death his trustees, on the assumption that in virtue of the statutory provision above referred to, his deed of settlement had the effect of a general disposition in their favour of his whole heritable estates, sold the estate of Lochbay for a large price, and I understand the purchaser accepted a title from the trustees. Thereafter, by missive of sale, dated in June and July last, the trustees further sold the estate of Glencassley to Mr Robert Brodie, writer in Glasgow, at the price of £28,290, payable on delivery of a valid conveyance, with a sufficient progress of writs. The purchaser has taken the objection that Mr M'Leod's deed of settlement does not confer on his trustees a valid right to his heritable estate, and a process of suspension as of a threatened charge for payment of the price was raised by him, in which the record was closed on 16th July last. A debate took place on this record immediately thereafter, at the close of which the cause was superseded by interlocutor, in order to allow Mr M'Leod's trustees to raise an action of adjudication in implement against the heir of Mr M'Leod, in terms of an offer to that effect contained in the answers for the trustees. I thought it proper to supersede consideration of the cause, because, in the first place, the heir-at-law of the late Mr M'Leod was the party really interested in the question whether the settlement gave an effectual right to the heritable estate, and he was no party to the process of suspension; and further, because it being provided by the section of the statute above mentioned that the deeds or writings, which are thereby declared to be equivalent to a general disposition of lands within the meaning of the statute, should be held to create in favour of the grantee of such deed an obligation upon the successors of the granter (which by the interpretation clause includes the heir) to make up titles in their persons to the lands, and convey the same to the grantee, I was further of opinion that in any view the purchaser was entitled to have a title so made up, either by conveyance by the heir or decree of adjudication against him, and was not bound to accept of a conveyance by the trustees only.

The present action was therefore raised, concluding that the defender, the only son and heir of the late Mr M'Leod, should be ordained to make up titles and convey the estate of Glencassley to the pursuers, or otherwise that the estate should be adjudged from him. The defender being in minority, a curator ad litem was appointed to him before the record was closed; and the defence now stated by the minor heir and his curator raises the question directly whether the truster's settlement gives his trustees a valid right to his heritable estate, or whether he died intestate as regards heritage, and the defender, his heir-at-law, takes up the heritable estate as intestate succession. The estate of Glencassley was held by Mr M'Leod at the time of his death under a conveyance dated in November 1870 in favour of him ‘and his heirs and assignees,’ granted by Charles Stewart and others, the sellers, for the price of £24,000.

The objection stated to Mr M'Leod's deed of settlement as a general disposition of his heritable estate is, that it contains no words of conveyance, bequeathment, or gift, and that some word of this kind is still necessary in mortis causa deeds, in order to give right to heritable property. Before adverting to the terms of the statute with reference to this contention, it is proper to notice the terms used in Mr M'Leod's deed, which, as already noticed, bears to have been written by himself, and apparently without the assistance of any lawagent. The deed, on the narrative that ‘it is expedient to provide for the proper upbringing and education of my children … in the event of my death while they or any of them are under the age of twenty-one years,’ nominates, constitutes, and appoints the persons therein named ‘to be my trustees and executors, and the curators and guardians of my said children,’ including the defender. It expresses Mr M'Leod's wish that his children should, while under the age of sixteen years, be brought up by and under the personal superintendence of his sisters,’ who shall, by the allowance from the interest of their ‘own money by the late Mr Leslie of Dunlugas’ (their grandfather's) ‘trustees, and from the interest of my means and estate, be paid a suitable sum of board, and for school fees, and for other expenses needful;’ and after directing payment of certain small legacies, the deed proceeds,—‘I hereby empower my said trustees to realise all my heritable and moveable property when they see fit, and to invest the proceeds (after paying the said legacies, as well as my lawful debts, deathbed and funeral expenses) on good heritable bunds.’ After directions for the distribution of certain articles of jewellery, the deed further goes on to empower ‘my said trustees and executors … to intromit with my means and effects in every way competent to executors, guardians, tutors, or curators,’ and to sue for and discharge debts or claims due to him; and after providing that the trustees shall be liable only for their actual intromissions, it deals with residue in these terms—The whole residue of my estate will be divided equally amongst my said children on their attaining majority, or to their representatives.’

It will be observed, on the one hand, that the deed contains no express words of conveyance, bequeathment, or gift of the truster's heritable estate, and the same observation may be made in regard to moveable property. On the other hand, it is quite clear that the granter regarded the deed as one which would give the trustees right to his

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heritable property. He appoints the parties named to be trustees and executors; to be guardians of his heir-at-law, as well as of his other children; provides that the interest of his means and estate shall be applied for the maintenance and education of his children; and in express terms empowers his trustees to realise all his heritable and moveable property, and after payment out of the proceeds of his debts, to invest the remainder on good heritable bonds; and he directs the residue of his estate to be divided equally amongst his children, obviously including his only son and heir. It was maintained for the defender that this last clause as to residue applied only to the moveable estate, in respect of the words which immediately preceeded it, which have reference to personal estate; but I am clearly of opinion that it was not the intention of the truster to limit the meaning of the word ‘estate,’ as used in the residuary clause to personal estate only. While the deed thus contains no transitive verb of conveyance it appoints trustees, empowers these trustees to realise and administer the truster's heritable property, directs the interest of his means and estate to be applied for behoof of his whole children, and directs the residue of his estate including in the truster's view his heritable estate, to be divided equally among his children. There being no objection to the deed as not duly tested the pursuers maintain that these provisions are sufficient under the statute to confer on them a right to the heritable estate, and to impose on the heir-at-law an obligation to grant them a conveyance.

The first part of the section of the statute in question provides that, contrary to the established law previously existing, an owner of lands may settle the succession to the same, in the event of his death, not only by conveyances de præsenti, but by testamentary or mortis causa deeds or writings. It farther provides that no testamentary or mortis causa deed or writing purporting to convey or bequeath lands …. shall be held to be invalid as a settlement of the lands to which such deed or writing applies on the ground that the granter has not used, with reference to such lands, the word ‘dispone,’ or other word or words importing a conveyance de præsenti.’ This second part of the clause renders the use of the technical word ‘dispone’ unnecessary, and may be held as practically enacting that no technical expression shall be required to make an effectual conveyance. The succeeding part of the clause, which from this point proceeds to enact affirmatively what will in future be sufficient to give right to heritable estate, is the most important in the present question, and is to be construed not merely with reference to the direct effect of the words there used, but also with reference to their effect reflectively in the interpretation of what has gone before. The provision is, that ‘where such deed or writing shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain with reference to such lands any word or words which would, if used in a will or testament with reference to moveables, be sufficient to confer upon the executor of the granter, or upon the grantee or legatee of such moveables, a right to claim and receive the same, such deed or writing … . shall be decerned and taken to be equivalent to a general disposition of such lands within the meaning of the 19th section hereof.’

This concluding part of the clause of the statute, in providing what shall be taken to be sufficient to give a right to heritable estate, is evidently intended to put the law in regard to the forms necessary for the conveyance of heritage as nearly as possible on the same footing as the law regulating the forms necessary for the conveyance of moveables. In so far as express words of conveyance, gift, or bequeathment were required for an effectual mortis causa conveyance of personal estate, they shall still be necessary in regard to heritage, but if words short of this will be sufficient to give right to moveables, the same rule shall be applied, in so far as the language used by the testator admits of it, in regard to heritage.

The general evil which the provision of the statute was intended to remedy was the failure of the law in requiring the use of a particular form of language to give effect to the will of the testator in regard to his heritable estate where his will was clearly expressed, and the statute should be construed so as to provide as far as possible a complete remedy for that evil. In regard to the disposal or destination of personal estate, any clear expression of the testator's will or intention, without reference to any particular form of expression contained in a document sufficiently tested, was and is sufficient and effectual.—Bell's Principles, section 1862. It appears to me, on a consideration of the terms of section 20th of the statute, that its intention was to make the law the same in regard to heritable estate. If that be the purpose of the statute, it should be so construed, if the language admit of it, as to produce that effect. I am of opinion that, giving to the language its fair meaning, that is its true effect; and that if a testamentary deed or writing, although it does not contain words of direct conveyance of heritable estate, yet contains a distinct expression of the granter's will and intention by the deed to carry right to heritage, the deed will be effectual for that purpose.

Thus, if a testator nominates and appoints certain persons to be ‘trustees to administer and dispose of my whole heritable estate, subject to the following directions,’ and then gives instructions as to the realisation and disposal of his whole property, or if a testator appoints certain persons to be trustees of my estates, heritable and moveable, and goes on to give powers of administration, and directions as to how his property, real and personal, is to be disposed of, as it is clear that, although the deed contains no transitive verb, or direct words of conveyance, it was the testator's will and intention, as expressed by himself, that his trustees should have right to his heritable property for the purposes of his deed, I think the deed would be effectual under the statute. It appears to me the same result would follow if a testator nominated and appointed ‘A B, my son, to be heir of the whole heritable estate belonging to me at the time of my death,’ or ‘to be heir to succeed to me in the whole heritable estate belonging to me at the time of my death,’ whether subject to certain conditions or obligations or otherwise. Such language would be a clear expression of the testator's will and intention that his deed should give right to heritage, and would therefore, in my opinion, be equivalent to a general disposition under the statute. It is obvious that in the cases just supposed of a nomination of trustees, or trustees and executors of personal estate, or to administer personal estate, the deed would be sufficient

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to confer right to moveables; and as the words are sufficient to have that effect I think it follows from the statute that, where the same words plainly refer to lands, they must receive the same effect in regard to heritage.

In the course of the argument the defender pleaded that a simple nomination by a testator of an heir would not be equivalent in effect to a general disposition of heritable estate, and expressions to that effect in the opinion of the Lord President in the case of Edmond, to be immediately noticed, were founded on. The question has not yet occurred for decision, but it is quite obvious that a bare nomination of au heir, without any additional words showing that the nomination is made expressly in order to give right to the testator's whole heritable estate, is in a very different position from such a nomination if followed by words clearly expressive of the testator's will and intention to that effect. The nomination of an executor, or the nomination of an executor and universal legatory, have known and settled meanings in the law, as fully explained in the opinions of the learned Judges in the case of White v. Finlay, 15th November 1861, 24 D. 38. The bare nomination of an heir has no such settled meaning, for the term is sometimes used to designate an heir in mobilibus, and varies in its signification according to the relation it holds to other terms preceding and following it in the deed in which it occurs. There are thus reasons for holding that the provisions of the statute may not be sufficient to make the mere nomination of an heir equivalent in effect to a general disposition. The case is, however, different where the nomination is followed by words showing the plain will and intention that the person nominated should succeed to heritable estate.

It was maintained by the defender that the words ‘such deed or writing,’ introducing the third or concluding part of the clause to which I have specially referred, refers back to the previous words, deed or writing purporting to convey or bequeath lands,’ and thus imports these words into that part of the clause which refers specially to what is sufficient to give right to moveable estate, as a test for an effectual deed as to heritage. On this assumption it was maintained that, as the deed must be one ‘purporting to convey or bequeath lands,’ an express word of conveyance or gift is necessary. I am disposed to think that, on a sound construction of the statute, the words referred to must be imported into the last clause, but I do not think that these words make it necessary that the deed should contain a transitive word of conveyance. To hold this would, I think, practically take away the whole force of the provision of the Act which refers to the form or terms of deeds sufficient to give a right to moveable property. But the words, ‘purporting to convey’ cannot, I think, be construed as equivalent to meaning or intending to use express words of conveyance, or anything more than meaning or intending or bearing to convey, and such meaning or intention may be clearly shown without express words of conveyance. The word ‘purport,’ taken from the French pour (for) porter (to bear), does not appear to me to have the limited meaning for which the defender contends. In the view of the statute which, for the reasons I have just stated, appears to me to be the sound one, I think it clearly follows that the deed in question gives a valid right to heritage under the statute. The powers expressly given to the trustees to deal with the heritable property, and to dispose of it as directed in the deed, plainly show that it was the testator's will and intention to give right to heritage. The case cannot, I think, be distinguished from that which I have already considered by way of illustration, in which the testator appoints trustees of his estate, heritable and moveable, or appoints trustees to administer and dispose of his estate, heritable and moveable, in terms of directions given.

Three cases have occurred in which the Court have construed the provisions of section 20th of the statute. Two of these, which were decided by the First Division of the Court, viz., Pitcairn, 25th February 1870, 8 Macph. 604, and Edmund, 30th January 1873, 11 Macph. 348, raised only the question whether the Words used by the testator covered and included heritable property. In the former of these cases the word ‘effects,’ and in the latter the words ‘money, bonds, debts, business and other effects whatsoever,’ were held to relate to moveable estate only. The Court were not called on to decide in either of these cases whether an express word of gift or conveyancing was necessary. There are certain expressions in the opinions of the Lord President and Lord Deas which seem to indicate a different view of the statute from that which I have adopted. These expressions were, however, obiter, not necessary to the decision of the case, and the point now directly raised was not before the Court for decision. I have therefore not felt myself bound by the expressions referred to. If they should be regarded, as maintained by the defender, as expressing the opinion that words of direct gift or conveyance are required to give a right to heritable estate, although not required to give right to personal estate, I must, with much deference, say that I do not concur in that view of the statute. It appears to me, however, that the expressions referred to do not go the length which the defender in argument maintained.

The remaining case of Hardie's Trustees, 13th May 1871, 9 Macph. 736, which was decided by the Second Division of the Court, is I think a direct authority on the present question. The testator in that case had not used any direct words of conveyance, but merely appointed trustees with power to take charge of his farm and means and moveables, and power to manage the farm or give it up, as they thought best for his family. This deed was held to give right to the lease, which, as heritable property, could only be carried by a deed in such a form as would carry heritable estate. If, in addition to the farm, the testator had mentioned heritable estate generally, or particular lands belonging to him, the decision would obviously have been the same, and applied to such lands as were referred to.

It may be noticed that in ‘The Conveyancing (Scotland) Act, 1874,’ (37 and 38 Victoria, cap. 94), which came into operation on the 1st of October last, it is provided by section 27 that it shall not be competent to object to the validity of a deed as a conveyance of heritage on the ground that it does not contain the word ‘dispone,’ provided it contains any other word or words importing a conveyance, or transference, or present intention to convey or transfer. As the words of this statute are different from those of the Act 1868, by which the present question must be determined,

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it does not appear to me that this enactment can be referred to with advantage in the construction of the earlier Act. It was the purpose of that Act to deal with mortits causa deeds, as distinguished from de præenti deeds of conveyance, intended at once to take effect. It appears to me, therefore, to be proper to determine the construction of that statute with reference to its own terms only, particularly as the language of the later Act is quite different. The later statute provides that words importing a present intention to convey or transfer (even in the absence of words importing conveyance or transference) shall be sufficient. The language of the earlier Act refers rather to the intention to confer a right than the intention to convey. There may or may not be a difference in the effect of the expressions, but I do not think it necessary or proper to enter on this question in the present case.”

The defender reclaimed to the Second Division, but their Lordships adhered to the Lord Ordinary's interlocutor.

At advising—