Scottish Court of Session Decisions

At advising—

Lord Justice-Clerk—I see no reason for entertaining doubt here. This document was found addressed to Mrs Aim, and in an envelope amongst the repositories of the deceased. It is a carefully written and distinct document. Whether it was intended or not as a memorandum for a lawyer's settlement is of no moment.

The first question we are asked to decide is, whether it carries heritage under the 29th section of the Act of 1868? Now, some questions may arise no doubt, but I am of opinion that the construction of that section is clear enough. It provides (1) in reference to heritage, that it may be conveyed by mortis causa settlement. (2) It provides that the word “dispone,” which was formerly essential, should be no more so. (3) It provides that heritage may be conveyed in a testament provided words are used in regard to heritage which if used in regard to moveables would be sufficient to carry them, and then that such a conveyance should be equivalent to a general disposition under the 19th section of the Act, and that the heir-at-law should make up his title accordingly. That, I take it, is the meaning of the clause. But then it is objected that in the present case heritage is not conveyed, there being merely a direction that the whole of the truster's estate is to be turned into cash and the proceeds safely invested for disbursing in manner directed. This, however, I cannot think to be a sound objection, and I am of opinion that this document will effectually carry heritage under the 20th section of the 1868 Act; and, looking to the whole language of this document, I am of opinion that it is perfectly clear the proprietor meant to convey his heritage, and under the section of the Act competently did so. The cases which have been quoted to us are not on all fours with the present case. The case of Lawson v. Ford was a very remarkable one, but far narrower than this. There was no settlement nor words of bequest, but simply a list of names with sums of money appended; it was certainly signed, but the Court refused to give effect to so bare an expression of the intention of the person who framed it.

I think, then, it is clear (1) that the first question must be answered in the affirmative. The conveyance is a good one, because words have been used in it with regard to heritage sufficient in regard to moveables to carry them. (2) It follows that the heir-at-law is under obligation to make up a title under the section of the Act, and besides section 46 of the 1874 Act applies to his case equally. (3) This question is chiefly a matter for common sense. The collocation of words, however, seems clearly to infer that Mrs Aim was to get the personal effects as contained in the inventory.

Lord Gifford concurred.

Lord Young—I am of the same opinion, and I have no doubt whatever about the case. It is true, I think, that the document before us is a proper will and no more. That which is commonly called a testament is not a conveyance of either heritage or moveable estate. It contains no words of conveyance. It has operation given to it, but that is in deference to the will of the deceased proprietor therein expressed. A will may contain a conveyance, and often does, but it is not necessary that it should do so. I speak of it without reference now to the changes in the law made by the 20th section of the Act of 1868. Before it was passed the proper purpose of a will or testament was to express the will and intention of the deceased with respect to the disposal of his personal estate, and the written instrument under his hand doing so was given effect to as the last will, or rather as the emphatic expression which disclosed the will in his mind at the last moments of his rational existence. If he had himself named a person to carry his express wishes into effect, the law armed that person with a title, and by naming and confirming him executor armed that person with a title, and then his duties were to execute the will of the deceased proprietor with respect to it; and even when he named no executor, but simply stated what his will was, the law appointed an executor to carry out that will, named and confirmed him, and vested him with a title to the property, his duty being to do with respect to it according to the mere wish of the testator.

That was the law of the land with respect to the will before the Act of 1868. The only other case was where the will contained an express conveyance of some specific subject; it then operated as a conveyance, and the party in whose favour it was made took independently of the executor altogether, and this distinction is explained by the text-writers and illustrated by decisions. But now since 1868, according to my own view of clause 20 of the Act of that year, heritage is placed in the same position as moveables, not with respect to a conveyance of it, but with respect to settlements of succession thereto. Formerly a proprietor, if he wished to sell his heritage, could not do so by declaring his will simply; the only mode of effecting his purpose was by making a de prasenli conveyance, and I think it has been expressly held that a conveyance in words to operate as a conveyance on death or six months after death is bad, because it is not a conveyance de prcesenti. But under the Act of 1868 wills were made applicable to heritage as well as moveables, and since then you may affect the heritage as you may moveables by use of any words which will confer a right to moveables. Supposing a proprietor said, “I want £1000 to be divided amongst my three children,” would the words be enough to confer on them a right to claim their share of the division of £1000? There can be only one answer. Well, the same words which would confer a right to moveables, will under the Act of 1868 confer a right to heritage if used with reference to heritage. I use them now with reference to heritage. The case, then, I think, is as clear as it can be. Again, let me give one more illustration, A list of legatees or persons entitled to take the estate of the deceased is quite good. If a proprietor directs that he wishes his estate to be divided so that A shall get £500, B a house, C a bit of land, and so on; and if he places opposite the surnames of some sums of money, and of others houses, the document which embodies these directions will be quite good to carry all, because whatever words give right to claim money will give right to claim land if land is mentioned. Therefore, as contrasted with a conveyance as the expression of the will of the deceased, I am of opinion that it is competent by the Act of 1868, as I read it, to give the will the same effect as regards heritage as regards moveables. The executor of the will is bound to give it execution with reference to both, following the testator's intention.

With regard to the second point, we decided the other day that under the 46th section of the 1874 Conveyancing Act a person in a position such as the heir-at-law here may complete his title under that section. And if we decide that the will is to have effect with respect to heritage, the heir-at-law can competently make up his title in terms of that section.