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Cite as: [1883] ScotLR 20_836, [1883] SLR 20_836

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Thursday, July 19. 1883.

[ Lord Kinnear, Ordinary.

20 SLR 836

Farquharson

v.

Farquharson.

Subject_1Succession
Subject_2Words importing a Bequest of Heritage-Mutual Settlement
Subject_3Special Destinations of Subjects acquired subsequent to Date of Settlement.
Facts:

A husband and wife, neither of whom was at the time possessed of heritage, conveyed in each other's favour by mutual settlement “all and sundry goods, gear, debts, effects, sums of money, heritable and moveable, household plenishing and furniture, and others whatsoever,” that should pertain to either at death. The husband afterwards acquired heritage, taking the title to part of it to himself and his wife in conjunct fee and liferent, for her liferent use allenarly, and to his heirs and assignees whomsoever, and the title to the remainder to himself and his heirs and assignees whomsoever. The husband having predeceased the wife, she claimed to be entitled, in virtue of the mutual settlement, to the whole heritable property left by him. Held (1) ( aff. judgment of Lord Kinnear— dub. Lord Young) that the terms of the mutual settlement were not habile to carry heritage; (2) (by Lord Justice-Clerk and Lord Young) that assuming that the mutual settlement was habile to carry heritage, it was evacuated by the terms in which the husband had taken the titles to the heritage acquired by him.

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Headnote:

Charles Henry Farquharson and Janet Farquharson, his wife, executed on 9th September 1840 a mutual disposition in the following terms:—“We, Charles Henry Farquharson, jeweller in Edinburgh, and Janet Wilkinson Romanes or Farquharson, spouses, for the love, favour, and affection which we have and bear to each other, have mutually agreed to grant these presents in manner after mentioned. Therefore I, the said Charles Henry Farquharson, do hereby assign and dispone to and in favour of the said Janet Wilkinson Romanes or Farquharson, my spouse (in case she survive me), her heirs, executors, and assignees, all and sundry goods, gear, debts, effects, sums of money, heritable and moveable, household plenishing and furniture, and others whatsoever, resting, pertaining, and belonging to me at the time of my death, by bond, bill, ticket, account, or any other manner of way whatever; and in like manner I, the said Janet Wilkinson Romanes or Farquharson, do by these presents assign and dispone to and in favour of the said Charles Henry Farquharson, my husband (in case he survive me), his heirs, executors, or assignees, all and sundry goods, gear, debts, effects, sums of money, heritable and moveable, household plenishing and furniture, and others whatsoever that shall be resting, pertaining, and belonging to me at the time of my death, by bond, bill, account, or in any other manner of way whatever; and, moreover, we do hereby nominate and appoint the survivor of us to be the sole executor, universal legator and intromittor with the whole goods, gear, debts, sums, and effects that shall happen to be resting and belonging to the person predeceasing in any manner of way, with power to the survivor of us to intromit with and dispose of the same at pleasure and if need be to pursue for and give up inventories thereof and confirm the same as accords; reserving always to each of us our liferent right of the sums and subjects before disponed during all the days of our lifetime, and full power and liberty at any time of our life to alter these presents in whole or in part as either of us shall think fit.”

Neither spouse was at the time of the execution of this settlement possessed of heritage. After it was executed Mr Farquharson purchased heritable subjects at Newington and at Summerhall Place, Edinburgh, taking the dispositions to himself and his wife in conjunct fee and liferent, for her life-rent use allenarly, and to his heirs and assignees whomsoever, heritably and irredeemably, but always with and under the power and faculty in his favour of full power and liberty at any time of his life, and without the consent of his wife, to sell, burden, wadset, or affect with debt, or even gratuitously dispone, the subjects in whole or in part as he might think proper, and generally to do everything thereanent as if he were absolute fiar of the same. He also purchased a shop in Leith Street, Edinburgh, taking the disposition to himself and his heirs and assignees whomsoever.

On 30th October 1882 Mr Farquharson died leaving no children. Mrs Farquharson survived him. This action was raised by her against her husband's nephew and heir-at-law, and also against his next-of-kin. The purpose of the action was to have it declared that the succession to the whole means and estate, heritable and moveable, left by or belonging at the time of his death to Mr Farquharson fell to be, and was, regulated and determined by the provisions of the above-quoted mutual disposition, and that the pursuer was entitled, under and in terms of these provisions, to succeed to the whole means and estate, heritable and moveable, left by him, and to which he was entitled at the date of his death.

Frank Farquharson, the heir-at-law, defended the action, pleading (1) that the mutual settlement did not convey heritage, because it was not at its date (1840) a deed habile to convey heritage, because at its date neither spouse possessed heritage, and because its terms did not import a conveyance of heritage. He also pleaded, that assuming the deed to be capable of conveying heritage, it was revocable, and was revoked by the manner in which the titles to the heritable property purchased by Mr Farquharson were taken.

Judgment:

The Lord Ordinary ( Kinnear) assoilzied the defenders.

“ Opinion.—The only question in dispute between the parties is, Whether the heritable properties specified in the answer to the second article of the condescendence are carried to the pursuer by the mutual disposition of 1840? There can be no question that that disposition is effectual to carry lands if it expresses an intention to that effect. But the defender maintains, and I think correctly, that the words in which the testators have specified the kind of estate they mean to convey are applicable only to moveable estate, and cannot embrace any kind of heritage, excepting moveable estate which may have become heritable destinatione, and debts and sums of money heritably secured. The question involved has been repeatedly the subject of decision; and I am unable to distinguish the present case from the cases of Brown v. Brown, and Cockburn (Hume 131), in which the same words as here employed, although in a settlement containing words of disposition, were held insufficient to carry lands or leases of land. The later case of Pitcairn v. Pitcairn is also in point. It is true that the word ‘effects’ was not in that case combined with the words ‘heritable or moveable;’ but the reasoning of the learned Judges, particularly the Lord President and Lord Mure, is directly applicable. This construction is strengthened by the words descriptive of the kind of title or security under which the property intended to be conveyed might be held—all of which are applicable to moveable estates alone, and altogether inapplicable to lands held by charter and sasine.

“It was argued that the word ‘subjects’ in the clause of reservation is sufficiently comprehensive to embrace heritable estate; and it may be that a conveyance of heritable subjects belonging to the testator might be held to include lands; but the word as used in the clause of reservation cannot be held to import an additional term into the dispositive clause. It is a word of reference, and cannot have a wider signification than the antecedent words to which it refers.”

The pursuer reclaimed, and argued—On a sound construction of the mutual disposition it was effectual to carry lands. Heritage had been carried by the use of the word (1) “effects” in the following cases— Hogan v. Jackson, June 20, 1775, 1 Couper's Rep. 299; Titchfield v. Prescott, July 18, 1808, 15 Vesey, 500; Campbell v. Prescott, July 18, 1808, 15 Vesey's Chan. Rep. 500. (2) By the use of the word “goods” in Ross v. Ross,

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March 2, 1770, M. 5019; Glover v. Glover, December 7, 1810, 16 F.C.; Welsh v. Cairnie, June 28, 1809, 15 F.C.; Wright v. Shelton, December 16, 1853, 18 Eng. (Writ) 445; Williams on Executors, ii. 1184. “Gear” meant all the property a man has gathered round him. The cases relied on by the defenders were inapplicable. The case of Brown v. Brown was a very old one, and in it at the date of granting the deed the granter had heritable property of various kinds, and this was an element considered by the Court in construing the deed in question. In Pitcairn v. Pitcairn the word “effects” was not combined with the words “heritable or moveable.”

The defenders replied—The disposition was inhabile to carry heritage— Brown v. Brown, January 26, 1770, M. 5440; Cockburn v. Cockburn, November 18, 1803, Hume's Decisions, 131; Pitcairn v. Pitcairn, February 25, 1870, 8 Macph. 604; Urquhart v. Dewar, June 13, 1879, 6 R. 1026. Even if capable of conveying heritage, it was revoked quoad all the heritage Mr Farquharson left by the terms of the dispositions taken by him.

At advising—

Lord Justice-Clerk—[ After stating the facts]—In these circumstances the question has arisen, whether the heritable subjects specified in the defender's answer are carried by the mutual settlement to the widow, or follow the destination contained in the conveyances?

The Lord Ordinary has found that the words used in the mutual settlement are not habile to include heritable property, and that the instrument must be read as confined to moveables, unless such as became heritable destinatione and debts heritably secured, and he founds on the case of Brown, M. 3440, and of Cockburn, Hume 131. These cases are much in point. Yet had the deceased left no other settlement of his heritable property the case might have been more doubtful than I take it to be.

This mutual settlement is essentially testamentary. The parties to it possessed no heritage. It only conveyed property which might belong to them at the death of the first deceaser, and it contained ample power to either of the spouses to alter it. There is the strongest reason to presume, both from the terms of the conveying words and from the general position of the spouses, that they had no intention of conveying heritage which might be afterwards acquired. But I am further of opinion, first, that this view of their intention derives great support from the special destination contained in the conveyance taken by Mr Farquharson to the properties afterwards acquired; and secondly, that these destinations effectually altered and evacuated the mutual disposition in so far as these subjects are concerned, even if they had been validly conveyed by that deed.

It is well fixed—and indeed was not questioned at the debate—that when a purchaser takes a title to heritable property containing a special destination, he is held by acceptance of the deed to make the destination his own. These conveyances, therefore, are equivalent to a settlement of the property by Mr Farquharson himself, and in my opinion effectually regulated the descent of these subjects at his death, and indicated very clearly his intention that they should not fall under the general settlement. The first of these conveyances being taken to himself and the pursuer in conjunct fee and liferent, for her liferent use allenarly, is of course inconsistent with the mutual disposition. In regard to the second, the title is taken to the purchaser's heirs and assignees, by which I understand future assignees or disponees of the special subjects. And as both spouses remained entirely free to alter the mutual disposition as they thought fit, this indication of intention should be, I think, conclusive. In regard to the question whether a special disposition will derogate from a prior general settlement, I think it enough to refer to the case of Don v. Webster, decided in this Division in 1876 ( 4 R. 101), and particularly to the very clear and lucid exposition of the law on that subject by Lord Gifford, which in all its points is very applicable to the present case. There a testator had executed a general disposition and settlement in favour of certain disponees. Several years afterwards he acquired some special heritable subjects, and took the titles to himself and his assignees and disponees, whom failing to A. B. The question arose whether this derogated from the general settlement, and the Court held that it did. Lord Gifford held, first, that the terms of the titles were equivalent to a settlement by the purchaser; secondly, after a review of the authorities, that the special title derogated from the general settlement; and thirdly, that the expression “assignees and disponees” did not necessarily carry the property to the persons named in the general settlement, but to any person to whom the purchaser might thereafter assign or convey the property.

The principles on which that case was decided are so clearly applicable to the present that I need not enlarge on them. In every aspect of it I think that the present claim by the widow has been effectually excluded.

Lord Young—I am doubtful on the first question—that which has been decided by the Lord Ordinary—namely, whether the words in the mutual disposition are habile to carry heritage, but on the second question I agree with your Lordship, and probably it is sufficient for the decision of the case. It was undoubtedly in the husband's power to deal with the moveable estate as he pleased, and with respect to all his heritable estate, except I think one house, he did deal with it in a manner which leaves no room for doubt as to what he intended, for when he bought it he took the title to himself and his wife in conjunct fee and liferent, for her liferent use allenarly, and to his heirs and assignees whomsoever, heritably and irredeemably, in fee. Now, there can be no doubt whether that having the power to take the title in this manner he did it, and that the effect was to limit his wife's interest to a liferent, giving the fee otherwise. The only doubt I have had on this part of the case—I confess it is a considerable doubt—relates to the house, the title to which he took to himself and his heirs whomsoever, and the doubt which I have on that is as to whether the wife is not to be regarded as his heir or assignee in respect of the general settlement. I think that point doubtful, and I am rather inclined to think, not that he did not intend her to

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be assignee, but that he meant the provision in favour of his wife to be confined to the moveable estate and to the liferent use allenarly which he had specially given her in all his houses except one, and that it was not according to his intention to confer upon her the fee of the house, the title to which he took in the usual terms of style to himself and his heirs.

Therefore on the whole matter I agree with your Lordship.

Lord Rutherfurd Clark—I am also of opinion that the interlocutor of the Lord Ordinary should be affirmed, but my opinion is based entirely on the reasons which his Lordship gives in his note, to which I have nothing to add.

Lord Craighill, who was absent at the debate, delivered no opinion.

The Court adhered.

Counsel:

Counsel for Pursuer— Gloag— J. A. Reid. Agents— J. & R. A. Robertson, S.S.C.

Counsel for Defender— Campbell Smith— Rhind. Agent— J. B. W. Lee, S.S.C.
1883