Scottish Court of Session Decisions

On October 4, 1867, William Stanhope Milne, stationer, of No. 126 Princes Street, Edinburgh, and his wife, the pursuer in this action, executed a mutual disposition and settlement. He was proprietor of the tenement where he carried on his business, and of considerable personal property. The pursuer had succeeded on the death of her father to a villa at Morningside, Edinburgh, and to some personal property. Her husband had greatly improved this villa, although the title stood in the pursuer's name. There was no antenuptial contract of marriage between the pursuer and her husband, and there were no children of the marriage. By the mutual disposition and settlement Mr Milne gave, granted, assigned, and disponed “to and in favour of the

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said Mrs Susan Mary Moffat or Milne, my wife, and on her decease to the heirs and successors whomsoever of me, the said William Stanhope Milne,” his whole property, heritable and moveable, of which he might die possessed; and the pursuer disponed her estate in the following terms:—“And in like manner, I, the said Mrs Susan Mary Moffat or Milne, do hereby give, grant, assign, and dispone to and in favour of the said William Stanhope Milne, his heirs and assignees whomsoever,” the whole estate, heritable and moveable, belonging to her at her death. These conveyances were made under burden on the survivor of the just and lawful debts and sickbed and funeral expenses of the deceased, and each appointed the other sole executor. There was a clause of reservation in the following terms:—“Reserving always to us, and each of us, our respective liferents of the means and estates 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 his or her decease, or in the custody of any other person for our behoof, with the delivery whereof we have dispensed and hereby dispense for ever.”

The wife survived her husband, who died on May 16, 1871, and was duly confirmed as his executrix, and she completed a title to the property in Princes Street as disponee of her husband and absolute fiar of his estate, both heritable and moveable. Her claims were resisted by the defender, as her husband's heir-at-law, on the ground that her sole right was one of liferent.

The pursuer therefore brought this action for declarator of her rights, and pleaded—“(1) The pursuer having survived her said husband, is, under the said mutual settlement, entitled to the absolute and uncontrolled right of property in the whole estates left by him. heritable and moveable, burdened as therein mentioned. (2) The pursuer having survived her said husband, is vested in and entitled to dispose at will of the whole property, heritable and moveable, which was by said mutual settlement disponed by her to her husband, his heirs and assignees.

The defender pleaded—“(1) The right of the pursuer to the subjects in Princes Street, which belonged to her deceased husband, being, according to the sound construction of the mutual disposition and settlement, one of liferent only, she is not entitled to decree of declarator in terms of the first conclusion of the summons. (2) The pursuer not being vested under the said mutual deed in the absolute right of her husband's personal estate, she is not entitled to decree in terms of the second conclusion of the summons.”

The Lord Ordinary pronounced the following interlocutor:—

“ 3d July 1875.—The Lord Ordinary having heard counsel for the parties, and considered the cause, Finds that the pursuer has only a right of liferent in the property referred to in the first and second conclusions of the summons: Therefore sustains the defences, and assoilzies the defender from the said conclusions of the summons, and decerns: Finds the pursuer liable in expenses, and remits the account to the Auditor to tax and report.

Note.—The question in this case is, whether by the mutual settlement referred to the pursuer has the fee, or only a liferent, of her husband's property, The conveyance is to her, and on her decease to her husband's heirs; and the character of her right depends on whether the words import a direct gift to the heirs of the husband, to take effect in possession immediately on the decease of his wife, or only a destination to the husband's heirs to take in succession to the wife, and as her heirs, in case she did not dispose of the property, or alter the destination. I am of opinion that the former view is the sound one, and that the latter is contrary to the natural and obvious meaning of the words, and the intention of the parties who used them.

Nor do I think that there is any rule of construction which requires me to put any technical meaning on the words employed, which is at variance with their natural meaning, and the impression which they make with respect to the intention of the parties using them. I quite see that a slight change of expression would convert what I view as a direct gift, to take effect on a specified certain event, into a nomination of heirs to the wife by simple destination; but taking the words as they stand, I am unable to resist the conviction that the right intended to be conferred on the wife was limited in its duration to her life, and that immediately on her decease the husband's own heirs were to have the property, not as her heirs by destination (and necessarily defeasible by her), but by the indefeasible force of the gift. This conviction is strengthened by contrasting the language of the conveyance by the husband (the meaning of which alone is in question) with that of the conveyance by the wife, which is in the ordinary form of a conveyance in fee, with a destination to heirs. I am persuaded that the intention of the parties would be violated if the same effect were given to both.

It is not essential to a liferent that it shall be given in express terms, for it may be conferred by implication, or stand on reasonable construction.

A gift to A, to take effect on the death of the donor's wife, without any disposal or direction for the disposal of the subject while the wife lives, will confer a liferent on the wife by implication.

I was not referred to any Scotch authority on the subject, and have not myself searched for such authority.

But the law is so settled in England, and the reason of it is, I think, obvious and satisfactory, and equally applicable in this country.

It was suggested that by limiting the pursuer's right by construction to a liferent, a difficulty would arise on the doctrine that a fee cannot be in pendente. I do not think so. In the case of an express and direct gift in liferent and fee by the same conveyance, the fee vests in the fiar to whom it is given, although his right of possession and enjoyment is postponed or in abeyance during the subsistence of the liferent, and it can make no difference whether the liferent is given expressly or by implication. Whether or not the implication is warranted is the only question, and that depends on the true

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construction of the words of gift, which cannot, so far as I see, be controlled or influenced by the doctrine that a fee cannot be in pendente.

Being thus of opinion that the pursuer has only a liferent of her husband's estate, I must, with respect to that estate, sustain the defences and assoilzie the defender. This disposes of all the conclusions of the summons except the last, which relates to the conveyance by the pursuer to her husband and his heirs, and is for declarator that the pursuer, having survived her husband, is vested with property to which this conveyance refers, and is entitled to dispose of it at will.

But the conveyance refers only to the property belonging to her at her death, and it is obviously impossible to declare that she is now vested with it, and entitled to dispose of it at will.

The conveyance will carry the property, if any, which may belong to her at her death, to the exclusion of her heirs ab intestate, and I should think (though it would be premature at present to decide) that she cannot defeat it by mortis causa deed. But the conveyance imposes no restraint upon her in spending or dealing with her property in her lifetime, and had the record presented any question on this head, I should, as at present advised, have decided it in the pursuer's favour.

The conclusion, as it stands, I can only regard as a blunder.”

The pursuer reclaimed.

Authorities— Young's Trs. v. Young, 19 July 1867, 5 Macph. 1101; Davidson v. Mossman, 27 May 1870, 8 Macph. 807; Dyer v. Carruthers, 27 May 1871, 1 Bettie 943; Dickson v. Sommerville, 3 March 1865, 3 Macph. 602; Lang v. Brown, 24 May 1867, 5 Macph. 789; Traquair v. Martin, 1 Nov. 1872, 11 Macph, 22; Welsh's Trs. v. Welsh, 24 Oct. 1871, 10 Macph. 17; Craich's Trs. v. Mackie, 24 June 1870, 8 Macph. 898; Ramsay v. Beveridge, 3 March 1854, 15 D. 764; Humphreys, 4 Law Rep. Eq. 475 331.

At advising—