Scottish Court of Session Decisions

By disposition and deed of settlement dated 15th July 1812, John Wightman disponed the lands of Garloff to David Wightman, his youngest son, and the heirs of his body, whom failing to any other son that might be born to him, and the heirs of his body, whom failing to Nicholas, Mary, and Janet Wightman, his daughters, and any other daughters that might be born to him, “equally amongst them, share and share alike, their heirs and disponees.” The deed recited an entail of even date, by which Mr Wightman had settled the lands of Breconside on his eldest son and a series of heirs, and which contained the following clause:—“Providing and declaring alwise, as it is hereby expressly provided and declared, and appointed to be engrossed in the infeftment to follow hereon, that in case the said David Wightman, or any of the heirs of his body, or any of the other substitutes before mentioned, shall succeed as heir of tailzie under the said deed of entail of the lands of Meikle and Little Breconside, in the parish of Kirkgunzeon, then he, or the other person succeeding thereto shall be bound and obliged, as they by their acceptation thereof bind and oblige themselves, to denude as to the lands hereby disponed in favour of my younger children, equally amongst them, and the heirs of their own bodies, and to convey the same to them accordingly. Under the disposition David Weightman succeeded to the lands of Garloff, and made up titles in ordinary form. He died without issue in May 1856, when he was succeeded by his sisters Nicholas, then Mrs Smith, and Janet, then Mrs Murphy. Their titles were duly made up as heirs of provision. Mary had predeceased her brother without being married. On Mrs Smith's death in October 1859, her son, the defender, succeeded as her heir to her pro indiviso half of Garloff. Besides the defender she had two other children—the pursuers Mrs Cryan and Mrs M'Dowall. Mrs Murphy died in 1874, and her share of Garloff fell to her eldest son, the pursuer Andrew Murphy. In 1875 the defender succeeded as heir of entail to the estate of Breconside. In consequence, the pursuers, viz., Andrew Murphy, Mrs Cryan, and Mrs M'Dowall, founding on the clause of devolution above quoted, called on him to denude in their favour of the lands of Garloff. They maintained that he was a “substitute” within the meaning of the clause.

The Lord Ordinary ( Rutherfurd Clark) repelled this plea, and found the defender entitled to absolvitor. His Lordship added this note to his interlocutor:—

“ Note.—[ After narrating the facts ut supra]—In the opinion of the Lord Ordinary the destination terminated with the daughters of the disponer. They succeeded as the last heirs of provision, and on the death of Mrs Smith her share of the lands devolved on the defender as her heir-at-law. The addition of the words ‘heirs and disponees’ does not prolong the destination, nor does it add anything to the legal effect of the deed. The succession would have been the same though these words had been omitted. All this seems to be settled by the cases of Leny v. Leny, 22 D. 1272, and M'Gregor v. Gordon, 3 Macph. 164. Taken by mere force of law, the defender cannot, it is thought, be regarded as a ‘substitute’ within the meaning of the deed. He could not be so regarded if the words ‘heirs and disponees’ had not occurred; and the addition of words which are of no legal effect cannot, as the Lord Ordinary conceives, make any difference in his position.”

The pursuer reclaimed.

Argued for him—The heirs of the daughters were substitutes. It was a question of intention, and that was what the testator intended. It was of no moment that the deed relating to Garloff was not an entail. A clause of devolution was perfectly consistent with a fee-simple title. That was the opinion of the Lord Justice-Clerk in Munro v. Butler Johnstone, December 18, 1868, 7 M. 250; and the other Judges reserved their opinions on the point, holding that it did not arise. There were other cases in which defective entails had been held good as regards clauses of devolution— Eglinloun v. Hamilton, June 3, 1847, 9 D. 1167—July 8,1847, 6 Bell's Apps. 136; Lady Hawerden v. Howden, Feb. 2, 1866, 4 M. 353; Fleming v. Howden, Feb. 14, 1867, 5 M. 659— rev. July 16, 1868, 6 M. (H. of L.) 113.

Argued for the defender—A clause of devolution was absolutely foreign to a fee-simple title—Lord Cowan in Munro v. Butler Johnstone, supra. But here the question was this—Was the defender a substitute within the meaning of the clause of devolution? He was not. His mother possessed in fee-simple, and he succeeded as her heir-atlaw. Leny v. Leny, June 28, 1860, 22 D. 1272; Macgregor v. Gordon, December 1, 1864, 3 M. 164.