Scottish Court of Session Decisions

Peter Cameron, dentist, 30 Barony Street, Edinburgh, died on 26th November 1882, leaving a widow but no children. He left a holograph will, dated 10th April 1871, in the following terms:—“In order to prevent all dispute after my death regarding the disposal of my property, I hereby leave and bequeath to my beloved wife the whole of the means and effects in my possession or belonging to me at the time of my decease, to be absolutely at her disposal. Signed in presence of Mr and Mrs Dingwal,” &c.

By feu-charter dated 10th February 1879 the testator had acquired from the Magistrates and Town Council of the royal burgh of Kinghorn a piece of ground in Kinghorn on which he built a house, the feu-right being taken “to the said Peter Cameron, and his heirs and successors whomsoever.” He completed no feudal title to it, and his widow died without making up a title, but continued to occupy the house upon the personal right, to the date of her death on 12th September 1886. She died intestate, and after her death her heirs-at-law entered upon possession of the house.

This action was raised against Mrs Cameron's heirs-at-law by the heirs-at-law of Peter Cameron to have it found and declared that the defenders had no-right to the house in Kinghorn, and should be ordered to remove, in order that the pursuers might enter thereto and possess the subjects as their property.

The pursuers pleaded—“(3) The holograph will founded on by the defenders does not carry the said heritable subjects, and the defenders have no right thereto under the said will.”

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The defenders pleaded—“(1) The subjects in question having been carried by the holograph will of the said Peter Cameron to his widow, and having become her property, and she having died intestate, the defenders are now entitled thereto as her heirs-at-law.”

The 20th section of the Titles to Land Consolidation (Scotland) Act 1868 provides—“From and after the commencement of this Act it shall be competent to any owner of lands to settle the succession to the same in the event of his death, not only by conveyances de præsenti according to the existing law and practice, but likewise by testamentary or mortis causa deeds or writings, and no testamentary or mortis causa deed or writing purporting to convey or bequeath lands which shall have been granted by any person alive at the commencement of this Act, or which shall have been granted by any person after the commencement of this Act, shall be held to be invalid as a settlement of the lands to which such deed or writing applies, on the ground that the granter has not used, with reference to such lands, the word “dispone,” or other word or words importing a conveyance de præsenti, and where such deed or writing shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain with reference to such lands any word or words which would, if used in a will or testament with reference 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 the 19th section hereof by the grantee of such deed or writing in favour of the grantee thereof, or of the legatee of such lands.” …

The Lord Ordinary ( Lee) on 1st August 1887 sustained the defences, and assoilzied the defenders from the conclusions of the action.

“ Opinion.—The pursuers are heirs-at-law of the late Peter Cameron, who died on 26th November 1882. They seek by this action to have it found and declared that the defenders (the heirs-at-law of Peter Cameron's widow) have no right to a house in Kinghorn which belonged to him at the time of his death, and ask for decree of removing against them in order that the pursuers may enter thereto, and possess the subjects as their own property.

As the title of the pursuers is established by the general service, No. 7 of process, and the notarial instrument, No. 9 of process, the question is, whether the defence is established, viz., that the subjects were carried by the holograph will of Peter Cameron? The terms of the will are not in dispute, but it is contended by the pursuers that it has no application to lands, and did not give to the widow a right to the subjects.

The merits of the defence thus depend on the terms of the will, as affected by the 20th section of the Titles to Land Consolidation Act 1868.

The will (dated 10th April 1871) is as follows:—‘In order to prevent all dispute after my death regarding the disposal of my property, I hereby leave and bequeath to my beloved wife the whole of the means and effects in my possession, or belonging to me at the time of my decease, to be absolutely at her disposal.’

At the date of the will Peter Cameron was possessed of no right to lands, but in 1879 he acquired the piece of ground in dispute, and built a house upon it. The feu-right was taken to ‘the said Peter Cameron and his heirs and successors whomsoever.’ He completed no feudal title to it, and his widow also died without making up a title, but the subjects were possessed by him, and afterwards by her, as upon a personal right, and no plea has been stated upon the absence of a completed title as affecting the question.

If the will be applicable and intended to apply to lands, I think that the feu-charter cannot be said to contain a destination which evacuated, as to this subject, Peter Cameron's testamentary disposition. A man who takes a feu-right in favour of himself, takes it also by the operation of law in favour of his heirs and successors whomsoever; and the fact that this is expressed in the deed creates in my opinion no presumption of an intention to exclude the application of a general settlement to the subject of such a right. The case of Don v. Webster, referred to by the Lord Justice-Clerk in dealing with the Leith Street subjects in Farqufiarson v. Farquharson, 10 R. 1253, was decided as a case of special destination. A destination to heirs whomsoever it is well settled is no destination at all.

The question whether the will purports to convey lands, and contains with reference to such lands any word or words which would, if used in a will or testament with reference to moveables, be sufficient to confer upon the executor or grantee a right to claim and receive the same is a question of intention; but I think it is acknowledged in all the cases which have occurred that it is not a question to be decided upon conjecture. If, therefore, the only words used had been those bequeathing the whole of the testator's ‘means and effects,’ I should have been disposed, to hold this case ruled by the cases of Pitcairn, 8 Macph. 604, and Edmond, 11 Macph. 348. But these are not the only words, and I think that it is settled by the decisions that if it clearly appears from the context that the testator intended to dispose of his whole property, whether heritable or moveable, the expression ‘means and effects’ may be sufficient to include lands. In the case of Urquhart v. Dewar, 6 B. 1026, the Lord President expressed his opinion that the question will always be, ‘Does the deed contain a “word or words” having reference to lands sufficient to express the intention of the testator to pass his heritage by his will? If there be such, either when taken by themselves or in connection with the rest of the will, then I think the lands will be effectually conveyed. … I only farther desire to add, by way of caution, that of course words conveying moveables are not sufficient to convey heritable property unless the wish is clearly implied in the language. They must be words importing that heritable property is meant to be conveyed as well as moveable, or that the whole estate is to be conveyed without distinguishing between the two kinds.’ The opinions of the

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other judges equally imply that the intention may be gathered either from the words of description themselves or from the rest of the will.

The case of M'Leod's Trustees v. M'Luckie, 10 R. 1056, was decided on the same principles. The testator there nominated a ‘sole executor and trustee,’ and after certain bequests of moveables directed him ‘to sell the remainder of my property wherever situated, and divide it.’ The opinions of the Judges of the Second Division in the cases of M'Leod's Trustees, 2 B. 481, and of Aim's Trustee, 8 B. 294, are clearly to the same effect.

So standing the authorities, the question is whether the preamble of this will, ‘In order to prevent all dispute after my death regarding the disposal of my property,’ is not a sufficiently clear expression of the testator's intention to dispose of his whole estate without distinction? My opinion is that the word ‘means and estate,’ when read in connection with the rest of the will, are intended to be applicable to the whole property belonging to the testator at the time of his death, and that therefore under the 20th clause of the Act of 1868 the will is equivalent to a general disposition of the subject in question, and created in favour of the testator's widow an obligation upon the heirs and successors of the grantor to make up titles and to convey the, same. The testator having been survived by his wife, this obligation is enforceable by the defenders as her successors.

I therefore sustain the defences and assoilzie the defenders.”

The pursuers reclaimed, and argued—The object of the 20th section of the Titles to Land Consolidation (Scotland) Act 1868 was to provide that any expression of intention habile to convey moveables should be sufficient to convey heritage also, if clearly applicable to heritage. That enactment, however, could not be applied to the will in question, as there the words “means and effects” were clearly words applicable solely to moveables. In the following cases this matter had been made the subject of actual decision— Pitcairn v. Pitcairn, February 25, 1870, 8 Macph. 604, vide Lord President's opinion; M'Leod's Trustees v. M'Leod, February 28, 1875, 2 B. 481, vide Lord Gifford's opinion; Urquhart v. Dewar, June 13, 1879, 6 B. 1026, vide Lord President's and Lord Shand's opinions. In Brown v. Bower and Others, 1770, M. 5440, it had been held that the words “means and effects, heritable and moveable,” did not carry heritage— Edmond v. Edmond, January 30, 1873, 11 Macph. 348. It was said that the dispositive clause which bequeathed the “means and effects” was controlled by the narrative clause, which used the word “property.” That was unsound. The only effectual clause of the deed could not be enlarged in this manner. It was also a highly important element in considering this question that the testator at the time of executing the deed was not possessed of the house in dispute.

The defenders replied—What was to be determined was whether the testator made it clear that his intention was to convey all estate, heritable and moveable, which might belong to him at his death. It was true that it had been held that the word “effects” alone was not enough to carry heritage, but the Court would look to the whole deed and not to the dispositive clause alone. The deed, moreover, was not the deed of a skilled person. What the testator clearly meant to make was a universal settlement in favour of his widow. It was true he had no heritable estate when he made the will, but nothing had occurred since to show that he had altered his desire to favour his widow. Except in Brown's case, the two words “means and effects” had never been found together, and doubts had been since thrown by Lord Young on the judgment in that case, in Oag's Curator v. Corner, &c., June 26, 1885, 12 B. 1162. The word “property” in the narrative clause clearly indicated the testator's intention to deal with heritage and moveables alike, and the words “means and effects” in the dispositive clause were enough to cover all that was intended by the word in the narrative clause— M'Leod's Trustee v. M'Luckie, &., June 28, 1883, 10 B. 1056.

At advising—