Scottish Court of Session Decisions

This case arose upon the construction of certain words in the settlement of the late Miss Anna M'Leod, residing at 50 Grange Loan, Edinburgh, who died upon the 1st April 1882. By her settlement she appointed David Nicolson to be her “sole executor and trustee.” The purposes of the settlement were for payment, first, of the expense of putting up a handsome railing round the grave of Miss M'Leod's father; second, a payment of two annuities—one of £10 and one of £20; and thirdly, she gave a legacy of £20 and divided certain corporeal moveables among her relatives. The last provision of the deed was in these words—“I also direct my trustee to sell the remainder of my property wherever situated, and to divide it equally among all my grandnieces.

“Mr Nicolson as trustee made up a title by notarial instrument.

The question between the parties was, Whether by this deed there was a valid conveyance of heritable property to Mr Nicolson, the “sole executor and trustee?”

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The moveable property left by Miss M'Leod amounted, including cash in the house and an account-current with a bank, value of furniture, and proportion of rents of heritage accrued at her death, to £323, whereas her heritage was valued at £5280. In the realisation of the estate it appeared that the moveable property was inadequate to pay the debts, annuities, and the expenses of the executry, and accordingly Mr Nicolson, the executor and trustee, proceeded to dispose of the heritable property. He received an offer from George M'Luckie of £1100 for house No. 50 Grange Loan; of £1100 from Andrew Blues for the house No. 29 Minto Street; and of £2500 from William Gilmour for certain properties in Milne Square and in the North Bridge. He accepted these offers, and his agents in due course sent the title-deeds to the respective agents of the purchasers, but they took exception to the trustee's title, and maintained that Miss M'Leod's settlement did not validly convey the heritable property which belonged to her, and upon that ground they refused to implement the contracts of sale.

Nicolson thereupon raised the present action of declarator and implement against M'Luckie, Blues, and Gilmour, concluding for declarator that the settlement of Miss M'Leod was a valid and effectual conveyance not only of the moveable estate which belonged to her but of her whole heritable properties wherever situated which belonged to her at her death, and that the same were vested in the pursuer, and that he was entitled to sell them. There were also conclusions to have the defenders ordained to implement their respective contracts. William M'Leod, the heir-at-law of the testatrix was called for his interest. He lodged no defences, and decree in absence passed against him.

The other defenders pleaded—“(l) The testamentary documents founded on being invalid and insufficient in law, et separatim, the same not being a conveyance of the deceased's heritable estate to the pursuer, he has no title to sue. (2) The pursuer not having a valid title to the heritable properties in question, or to any of them, is not in a position to implement the various contracts founded on, and the defenders are therefore entitled to absolvitor, with expenses.”

The Titles to Lands Consolidation (Scotland) Act 1868 (31 and 32 Vict., c. 10), by sec. 20 enacts (after providing that from and after its date an owner of lands may competently convey them by testamentary writings, and that no settlement shall be invalid by reason of the absence of the word “dispone” or other word of de prœsenti conveyance) “and where such deed or writing … shall contain with reference to such lands any word or words which would, if used in a will or testament relating to moveables, be sufficient to confer upon the executor of the granter or upon the grantee or legatee of such moveables a right to claim and receive the same, such deed or writing, if duly executed in the manner required or permitted in the case of any testamentary writing by the law of Scotland, shall be deemed and taken to be equivalent to a general disposition of such lands within the meaning of sec. 19 hereof by the granter of such deed or writing in favour of the grantee thereof.”

The Lord Ordinary pronounced the following interlocutor:—“Finds and declares and decerns against the defenders who have lodged defences, conform to the declaratory conclusion of the libel; and decerns and ordains against them conform to the remaining conclusions thereof.”

“ Opinion.—There is no question in this case as to the sufficiency of the testamentary writing as a will, nor as to its sufficiency to dispose completely of the estate, whatever that may be, which the testator intended to dispose of. The question is, whether, in the testator's intention deduced from the instrument, the will extends to estate heritable and moveable, or is confined in its operation to moveable estate? The decided cases upon the effect of the Statutes of 1868 and 1874 agree in recognising the principle that this is quoestion voluntatis. In applying these cases it must, however, be considered that the degrees of ambiguity in testamentary language are infinite—ranging by imperceptible differences from cases in which the intention to convey heritage is clear to cases where the intention is clear to convey nothing but moveable estate. At whatever point the line may be drawn, it is clear that there will be cases on opposite sides of the line which are separated only by very small elements of difference. I think therefore that the decisions are to be followed by applying these principles rather than by attempting to collate the expressions used in other wills with those which are used in the particular will under consideration. The form of this will is that of an appointment of an executor and trustee, with instructions to divide. If it had been an appointment of an executor only, it would be difficult to hold that such an appointment would carry heritable estate. The use of the word ‘trustee’ in subsequent parts of the will would not be conclusive, because it would without impropriety be interpreted in a sense synonymous with ‘executor.’ But here the testator begins by appointing the pursuer her executor and trustee—words which may (although they do not necessarily) import a power to administer heritable and moveable estate. They are words which, when used with reference to moveables, would give the trustee a right to administer or to apply to the commissary for an administrative title, and which would give to the legatees a right to claim and receive the share of succession which the trustee is directed to divide amongst them. It would seem therefore, according to the provision of the statute, that these words are capable of having a testamentary operation upon heritages provided it appears from other parts of the will that the testator was dealing with heritage.

“The next point for consideration is that the testator Miss Anna M'Leod had no moveable investments. The inventory of her estate consists of furniture, cash in house, and a small sum at the credit of her current account, together with the unrealised proportion of rents current, which, though moveable in law, are nevertheless an accessory of the heritable estate from which they are derived. The will was made shortly before her death, and there is nothing to suggest that the lady was contemplating future acquisition of property; she certainly was disposing of her property already acquired, which, as I have said, was heritable.

In this state of things the testator proceeds to leave various small legacies, which more than exhaust the sum in the inventory, and then

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directs her trustee ‘to sell the remainder of my property wherever situated, and to divide it equally’ amongst her grandnieces. Now, considering that the word ‘trustee’ is capable of importing a universal title of administration, and that the word ‘property’ is a universal appellative, adequate to pass heritable as well as moveable property, and that there are no limiting words in any part of the will which would impose a meaning on these words less extensive than the widest meaning which they will bear, I come to the conclusion that this is in legal effect as well as in intention a will disposing of the testator's whole estate. The direction to sell is a direction natural and appropriate where the subject of disposition is house property, and the division is to be among a class of persons. The words ‘wherever situated’ are more appropriate to heritable property than to personality, which has only one situs; and it is to be considered that this is the will of a heritable proprietor having only the minimum of personal property which every person possessed of means must keep for his or her immediate wants.

While the case lies very near the critical line, I think there is sufficient evidence of an intention to dispose of heritage, and that the will should be so construed ut res magis valeat.”

The defenders reclaimed, and argued—The use of the word “property” did not necessarily involve that heritage would be carried; that depended upon the context.—Titles to Lands Act 1868 (30 and 31 Vict. cap. 101), sec. 20, and following recent cases— Urquhart v. Dewar. June 13, 1879, 6 R. 1026; Aim's Trustees, December 15, 1880, 8 R. 294; Pitcairn, February 25, 1870, 8 Macph. 604; Hardy, May 13, 1871, 9 Macph. 736; Edmond, January 30, 1873, 11 Macph. 348. The words of the deed were clearly insufficient to carry heritage. No doubt the word “trustee” was used, but it was, taken along with the context, synonymous with “executor,” a term applicable only to an intromitter with moveables.

Additional authorities— M'Leod's Trustees, February 28, 1875, 2 R. 481; Pringle, November 14, 1877, 15 Scot. Law Rep. 89.

Argued for the respondent—The testatrix intended to convey heritage. The conveyance was a good conveyance of heritage having regard to sec. 20 of the Titles to Land Act 1868.

At advising—