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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Bishop of Sydney and Others (Harden's Trustees.) [1876] ScotLR 13_381 (16 March 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0381.html
Cite as: [1876] ScotLR 13_381, [1876] SLR 13_381
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SCOTTISH_SLR_Court_of_Session
Page: 381↓
Court of Session Inner House Second Division.
Facts:
A conveyed a house to his wife, who was infeft therein, the disposition proceeding upon the narrative that he had through her succeeded to money. His wife predeceased him, and after a second marriage he died, leaving a trust-disposition and settlement conveying to trustees his whole means, heritable and moveable, and directing them to dispose of, inter alia, his “house, furniture, plate, &c.,” and also generally to realise the residue, “whether heritable or moveable.”— Held, without deciding the question whether or not the disposition to the wife was revocable, that it had not been revoked.
This was a Special Case, in which the Bishop of Sydney, the Rev. J. Harden Clay, and G. T. Kinnear, W.S., trustees and executors appointed by Mr Harden's will, were the first parties, and Lieut.-Col. Learmonth, M.P., and James Cleghorn Moore, heirs-portioners of the deceased Mrs Cleghorn or Harden (Mr Harden's first wife) were the second parties. Mr Harden died on 9th January 1875, leaving a trust-disposition and settlement dated 5th December 1873. He was twice married, first, in 1829, to Miss Mary Cleghorn, who
Page: 382↓
died intestate in 1867, and second, in 1869, to Miss Nixon, who survived him. There was no issue of either marriage. The circumstances under which this case was brought were as follows:—In 1831 Mr Harden bought No. 6 Doune Terrace, and completed a feudal title thereto. He and his first wife resided there till her death, and afterwards he remained there till his death. On 1st November 1849 Mr Harden disponed the house in Doune Terrace to his wife, setting forth in the disposition the following reasons:—“Considering that since the solemnization of my marriage with Mrs Mary Cleghorn, otherwise Harden, my spouse, she became entitled to the sum of £8000, under the will of John Flemming, formerly of the East India Company's service, and late of the city of London, Doctor of Medicine, deceased, which said sum was received by me and applied to my own uses and purposes, and seeing that the said sum, though received by me as aforesaid, truly belonged to my said spouse, and that it is therefore reasonable and proper that the same should be secured to her for her own proper use and behoof exclusive of my jus mariti: In consideration whereof, I have resolved to convey to her in manner underwritten the subjects after described in satisfaction pro tanto of the said sum—therefore I have alienated and disponed, and do by these presents alienate, dispone, convey, and make over from me, my heirs and successors, to the said Mrs Mary Cleghorn or Harden, and to her heirs and assignees whomsoever, heritably and irredeemably, All and whole that area in Doune Terrace,” &c. Mrs Harden was duly infeft. Dr Flemming's will, under which Mrs Harden succeeded to the £8000, contained no exclusion of jus mariti, and nothing save the following simple legacy:—“I bequeath to Miss Mary Cleghorn, daughter of my aforesaid cousin, £8000.”
The truster by his will disponed to the first parties, inter alia, “All and whole the lands and heritable estate and pertinents, of whatsoever kind and wheresoever situated, now belonging to me, or of which I shall die possessed,” and in the latter part of the fourth clause as to the disposal by the trusteesof the estate there occurred the following directions—“My house, furniture, plate, books, &c., I would wish sold (with the exception of two silver goblets, given to me by my father, which two goblets I leave to my brother the said John William Harden), and the proceeds to go into the said residue of my estate. Quinto, I direct my said trustees or trustee to realise the residue of my estate foresaid, whether heritable or moveable.”
On Mr Harden's death, his trustees being ignorant of the disposition of No. 6 Doune Terrace in favour of Mrs Harden, made up a title in their own persons as trustees thereto, and, in terms of the instructions contained in the trust-disposition and settlement, proceeded to realise the estate. With this view they advertised the house for public sale, and on the 10th of February 1875 it was exposed and sold for £3000. In searching the records for the safety of the purchaser it was found that the disposition to Mrs Harden had been granted. Except upon his estate of Orea in Ireland, Mr Harden was possessed of no other house than No. 6 Doune Terrace, either at the date when his settlement was executed or afterwards.
The following questions were submitted for the opinion and judgment of the Court:—(1) Whether the disposition of the house No. 6 Doune, Terrace, executed by the said deceased Robert Allan Harden on the 1st of November 1849, in favour of the said deceased Mrs Mary Cleghorn or Harden, and her heirs and assignees whomsoever, and the infeftment following thereon in her favour, conferred on her an absolute and irrevocable right and title to said house; or whether the said disposition has been effectually revoked by the said trust-disposition and settlement of 5th December 1873; and whether the said house has been effectually conveyed by the said trust-disposition and settlement to the parties hereto of the first part? (2) In the event of its being found that the said disposition has not been effectually revoked, whether the parties of the second part are entitled to the said house, or to the price thereof, as heirs of the said deceased Mrs Mary Cleghorn or Harden? (3) Whether the parties of the second part are entitled to payment of a sum corresponding to the amount of the annual rent or value of the said house for the years which have elapsed since the death of the said Mrs Harden, with annual interest? (4) Whether the said second parties, in the event of their being found entitled to the said house or price thereof, are liable to repay to the first parties the sum of £2000 mentioned in article 4th of the foregoing statement? (5) Whether the said James Cleghorn Moore is further entitled to the legacy bequeathed to him by Mr Harden.”
Argued for the first parties—There were here two questions—(1) Whether the donation of the house to Mrs Harden was or was not revocable; (2) Whether, supposing it to have been revocable, it was or was not revoked?
There was here, on a just construction of Mr Harden's will, evidence of intention to dispose of his whole estate, including this house. He had lived in it six years after his first wife's death, when he made his will, and no claim had been during that time made to it by the first wife's heirs. This was a case merely of donation inter virum et uxorem. If he intended to revoke the deed, supposing it revocable, he took a habile mode of doing so. The question thus regarded as one of intention was answered in the deed by (1) the mention of the house, “house, furniture” &o., in clause 4; and (2) the general disposition of heritable property. There was not here in the legal sense a remuneratory donation, which must have in it an onerous obligation, or at least a moral obligation.
Authorities— Findlay v. Mackenzie, July 9,1875, 2 R. 909, 12 Scot. Law Eep. 597; Stevenson v. Hamilton, Dec. 7, 1838, 1 D. 181; Handyside, Feb. 7, 1699, M. 11,349; Erskine, i. 6, 31.
Argued for the second parties—If a deed made under the circumstances of this deed was a natural and rational one, it was not revocable. The presumption was against the revocation of a special deed by a general settlement. The case was a still stronger one when the testator was divested by his own inter vivos deed. The authority of Handyside had settled the question that a general deed will not revoke a specific donation.
Authorities— Halyburton, Dec. 10, 1713, M. 11,387; Handyside, M. 11,347.
Page: 383↓
At advising—
Now, upon the second question I am clearly of opinion that the presumption against revocation might have been excluded had there been a clear reference to the house, and there can be no doubt that there would have been enough to imply a revocation had there been a special conveyance of the subject. But I am disposed to think that there is nothing in Mr Harden's will on which we could safely rely as proving an intention to revoke this conveyance of the house. There is really nothing at all save in the words “house furniture,” and those words are not to be found in the conveyance; they are only a direction to the trustees as to how they are to dispose of what has been conveyed to them. Now, I am not prepared upon the punctuation alone (although in the original deed there certainly is a comma after “house”) to hold that there was here a conveyance of No. 6 Doune Terrace. In the first place, there are no words of revocation; next, there is no implication on the facts of a conveyance of a house on the titles of which it was clear that it did not belong to the testator; and lastly, it is not enough to go on the specific portion of the clause; the surroundings also must be considered, and they all point to the meaning as being furniture “of the house,” as distinguished from other furniture.
That alone would be sufficient to decide the matter, but I am led inductively to conclude that without the clearest words it is impossible to believe Mr Harden could have intended to undo what he had done. The conveyance to Mrs Harden is not, and does not bear to be, a pure donation, and without giving any express opinion, I am inclined to think that between husband and wife the arrangement was just and equitable. It might be a nice point, if the case turned upon that, to decide whether such a donation would be good against creditors or not, as it is a wholly remuneratory gift, but I may observe that things may stand as inter maritos which might not be good were creditors in the field, where the consideration is a reasonable one.
Whether or not this deed could have been sustained, it is clear enough that Mr Harden in granting the deed did an act which would require for its cancellation a distinct revocation.
Accordingly, on the whole, I think that there are not sufficient words in the testamentary deed to justify the theory of a revocation, and that in the circumstances a revocation should not be presumed unless it were very clear.
It has been often decided that in order to operate a revocation there does not require to be any overt act or deed, but merely something which is directly opposed to the donation, as, for instance, if in the clause in question Mr Harden had distinctly named the house; and this leads me to what has occasioned the doubt in my mind, namely, whether the language used was intended to apply to the house. I do not think, on the whole, that Mr Harden had the house at all, and moreover, had this been so, the conveyancer would not have mentioned it in so casual a manner. Therefore, disregarding the comma (and there are plenty of cases in point for that), I am led to think that a term has been used not after all so unusual, for “furniture” is applied to many things. Looking to the collocation of the words, and to the rule that in dubio the presumption is against revocation, I think there was no revocation intended here, and in favour of this view I am unable to resist the narrative of the conveyance itself.
As to the 5th clause, I look upon it as attended with even greater doubt; it is so general in its character.
The Court pronounced this interlocutor:—
“The Lords having heard counsel on the Special Case, are of opinion and find that the disposition of the house No. 6 Doune Terrace, executed by the deceased Robert Allan Harden on the 1st of November 1819, in favour of deceased Mrs Mary Cleghorn or Harden, and her heirs and assignees whomsoever, and the infeftment thereon in her favour, has not been effectually revoked by his trust-disposition and settlement of 5th December 1873, and that the said house has not been effectually conveyed by the said trust-disposition and settlement to the parties of the first part to this case: (2) That the parties of the second part are entitled to the said house or to the price thereof, as heirs of the said deceased Mrs Mary Cleghorn or Harden: (3) That the parties of the second part are not entitled to payment of any sum corresponding to the amount of the annual rent or value of said house for the years that have elapsed since the death of the said Mrs Harden, and during Mr Harden's possession: (4) That the said second parties are not liable to repay to the said first parties the sum of £2000 mentioned in article 4th of the Special Case: (5) That James Cleghorn Moore of Burton Hall, Car-low, is entitled to the legacy bequeathed to him by Mr Harden.”
Counsel for First Parties— Kinnear—Balfour. Agents— Hamilton, Kinnear, & Beatson, W.S.
Counsel for Second Parties— Fraser—Gloag. Agents— MacKitchie, Bayley, & Henderson, W.S