Scottish Court of Session Decisions

This was a sequel to the Special Case, John Dawson and Others, reported ante, November 10, 1870, vol. xiv. 71, 4 Rettie 597.

Adam Dawson, primus of Bonnytoun, in his settlement disponed his estate of Bonnytoun to his eldest son William Dawson, under the real burden of the sum of £6000, payable in the following manner, viz.:—“ First, £2000 thereof shall belong to my son James Dawson, to whom the principal shall be payable upon his attaining the age of twenty-one. … Secundo, £1500 shall, under the conditions and restrictions after mentioned, belong in liferent to each of my daughters Frances and Margaret, viz., £3000 betwixt them, and to their children in fee, the interest at 4 per cent, being payable to them respectively, as alimentary provisions, from the term of Whitsunday or Martinmas immediately preceding my death, the principal sum in each case to be divided among the children of each: Providing always, as it is hereby expressly provided and declared, that any husband whom the said Frances or Margaret Dawson may respectively marry shall in no event have any right, either of property, liferent, courtesy, or administration, or any other right or interest whatever, in and to the sums of money above provided to them respectively, or in and to the lands and sums of money hereinafter provided to them, or any part thereof, or the rents, annualrents, or profits of the same, in virtue of the jus mariti, or otherwise, nor shall the same be affectable by the debts or deeds of such husband, but the said Frances and Margaret Dawson shall have power to uplift and dispose of the whole subjects and sums of money hereby conveyed to them respectively, and rent, annualrents, and profits of the same, in any manner not inconsistent with the provisions of this deed, without the consent of any such husband or husbands; and that every deed to be done by them, or either of them, in relation to the premises, though without the consent of any husband whom either of them may have, shall be as valid and effectual as if they had

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continued unmarried, or their husbands had consented thereto; as also that in case the said Frances or Margaret Dawson, or either of them, shall have occasion to lend out any sums to which they shall succeed in virtue of these presents, or to purchase therewith any lands or other subjects whatever, the conveyances or securities to be taken by them, or either of them, shall contain an express exclusion of the jus mariti of either.”

By a residuary clause in this disposition Mr Dawson further disponed to his sons, the late Adam Dawson secundus, and the pursuer John Dawson, all and sundry lands and heritages other than those specially thereby conveyed, of which he should die possessed, or to which he might have right, and also all debts, heritable and moveable, corns and cattle, gold and silver, bank stock, bank notes, laying money, and in general all his goods, means, and estate not thereby otherwise disponed, of whatever denomination, heirship as well as others, which then belonged, or which should belong to him at the time of his death, with certain exceptions therein mentioned, and with and under the provisions and conditions therein specified; and he thereby nominated and appointed the said Adam Dawson secundus and John Dawson to be his sole executors.

On the death of Adam Dawson primus his eldest son “William entered into the possession of his heritable estate under the settlement and became subject to its provisions. In 1814 he sold Bonnytoun to his brother Adam secundus, under the real burden of the above-mentioned sum of £6000, which the latter was thereby taken bound “to pay to and apply for behoof of the parties to whom the same was so bequeathed, all in terms of the directions given in the said deed of settlement.”

Frances Dawson died unmarried on 27th March 1867, survived by her brother William Dawson, leaving a trust-disposition and settlement, in which she conveyed all her heritable and moveable estate to certain trustees.

In a Special Case, brought for the purpose of having that amongst other matters decided, the First Divisiou of the Court held that the fee of the £1500 had not vested in Frances Dawson, and had not transmitted by her settlement to her trustees.

John Dawson and others, the accepting and surviving trustees and executors of Adam Dawson secundus, then brought an action of declarator against (1) John Ramage Dawson, as sole surviving trustee and executor of Miss Frances Dawson; (2) against him as sole surviving trustee of William Dawson; and (3) against himself John Dawson as an individual, to have it found that the real burden of £1500 upon the estate was discharged, and that none of the defenders had any jus crediti therein, and that a title made up to it by Frances Dawson's trustees fell to be reduced.

The Lord Ordinary gave decree in terms of the conclusions of the summons, decree in absence being granted against John Ramage Dawson. He added the following note:—

“ Note.—The Lord Ordinary has decided this case in favour of the pursuers, because the legacy of £1500 in favour of Frances Dawson in liferent and her issue in fee was made a burden on the estate of Bonnytoun, and because the lapse of this legacy by the failure of her issue has merely the effect of freeing the estate from the burden which was contingently charged upon it. The Lord Ordinary cannot see how the residuary legatees have any right to the legacy.”

John Dawson reclaimed.

The question was, Whether the benefit of the lapse of the bequest of £1500 fell to the estate or to the residue?

Respondent's authorities— Cooke v. Stationers' Company, 3 Milne and Keen 262; Cairns v. Cairns, March 11, 1829, 7 S. 571.

At advising—