Scottish Court of Session Decisions

James Hay, sometime mason in Aberdeen, who died in 1823, by his deed of settlement gave, granted, and disponed to and in favour of James Hay, his nephew, “but always under the express condition of his continuing to profess the Roman Catholic religion, and failing the said James Hay by death or abandoning his said religion, then to my own nearest heirs professing the Roman Catholic religion, and to the heirs and assignees whomsoever of my said disponees,” certain heritable subjects in Aberdeen.

On the testator's death James Hay, his nephew, took the subjects. He died intestate on 27th July 1839 survived by one child Ann. After his death his widow Margaret Smith or Hay continued in the possession of the subjects. She entered into a second marriage with James Nicol. Mr and Mrs Nicol then managed the property until Ann Hay's marriage in 1881 to William M'Combie Brown, mason in Aberdeen. Thereafter she and her husband possessed the subjects. Mrs Brown expede a general service as nearest and lawful heir to her father, dated 18th and recorded in Chancery 20th March 1874, and on 22d April 1874 disponed and assigned the said subjects to Edward Fiddes and J. A. Sinclair, as trustees for behoof of the Aberdeen Heritable Securities Investment Company (Limited), in security of an advance made to her, and infeftment was taken by the trustees for the company. This action was raised in the Sheriff Court of Aberdeen by Isabella and Helen Hay, both residing in Bain Square, Dundee, grandnieces of James Hay the elder, being two surviving children of the deceased Alexander Hay, a brother of James Hay, the nephew, against Ann Hay or Brown and her husband, the Aberdeen Heritable Securities Investment Company (Limited), and Edward Fiddes and J. A. Sinclair as trustees for the company, to have it found and declared that, upon a sound construction of James Hay's settlement, they, as nearest heirs of the testator professing the Roman Catholic religion, had right to the subjects therein disponed, to have the defenders ordained to remove, and to have them interdicted from selling the subjects. It was admitted that Mrs Brown always had professed the Protestant form of religion.

The Sheriff-Substitute ( Comrie Thomson) pronounced this interlocutor:—“Finds that on a sound construction of the disposition and deed of settlement of James Hay the elder, the condition of continuing to profess the Roman Catholic religion is personal to his disponee James Hay: That an absolute fee of the subjects in question was created in the person of James Hay the younger, and that his heirs and assignees whomsoever were entitled to the succession: That the defender Ann Hay or Brown is heir of the said James Hay: Therefore sustains the defences, assoilzies the defenders from the conclusions of the action: Finds them entitled to expenses,” &c.

“ Note—.. The pursuers profess the Roman Catholic religion. The defender has been brought up and continues a Protestant. The former maintain that by this circumstance the defender is disqualified from succeeding to the property, in respect of the terms of the dispositive clause of the disposition and deed of settlement of James Hay the elder. The construction of that clause appears to be the only question in the case, and if the view which I have adopted of its true meaning be sound, the pursuers' construction cannot prevail.

The clause is in these terms—[ Quotes the clause given above],

I am of opinion that the true meaning of the clause is that the failure of James Hay by death before the granter of the deed, or by abandoning the Roman Catholic faith, was a condition necessary to be fulfilled before the succession opened to the granter's nearest heirs professing the Roman Catholic religion. That ‘failure’ did not occur. In short, these nearest heirs must be held to be conditional institutes, and not heirs-substitute. James Hay, the nephew, obtained a vested right as institute under the deed, so that the granter's nearest heirs professing, &c., could never attain the character of institute under it.

This construction seems to be favoured by the views expressed by the majority of the Judges of the Court of Session consulted under a remit from the House of Lords in the well-known case of Fogo v. Fogo, 25th Feb. 1840, 2 D. 651, and 4 D. 1063. There the destination was to A and the heirs of his body, whom failing to B, & c. A predeceased the testator without leaving heirs of his body. On the death of the testator the succession opened to B. The majority of the Court held that B was not an heir-substitute, but a conditional institute, and that the destination was to be read as if it had run, ‘In case of the failure of A and the heirs of his body before me, then I dispone to B.’ Again, in a later case, Hutchison v. Hutchison, 20th December 1872, 11 Macph. 229, the granter of a mortis causa settlement disponed to ‘the heirs of my own body, whom failing to A, B, C, and D, and their respective heirs in fee.’ The granter died without leaving heirs of his body, and it was held that A, B, C, and D were conditional institutes and not substitutes, and had right to the property as disponees without service.

The result in the present case is, that as the conditions under which alone there was any conveyance of the estate to the testator's nearest heirs professing the Roman Catholic faith never existed, the property passed to the heir of the direct and immediate disponee, and that heir's succession is not by the terms of the deed fettered by any limitation as to the religious profession.

The object of the testator seems to have been, so far as can be gathered from the whole scope of the settlement, to secure that the person who should succeed next after himself should be a Roman Catholic, but beyond that immediate successor he imposed no trammels.

It is unnecessary, if I am right in these views, to deal with the plea founded on the terms of the deed of retrocession pleaded on record.”

On appeal the Sheriff ( Guthrie Smith) adhered.

The pursuers then appealed to the Court of Session, and argued that the terms of the deed imported a substitution and not a conditional institution.— Smith v. Stewart, December 14, 1830, 6 S. 180, Bell's Lect., ii. 848.

At advising—