Scottish Court of Session Decisions

John Lyon, classical master of the High School, Leith, died on 18th March 1847, leaving a settlement dated 13th November 1841, with a codicil thereto dated 19th August 1842.

By the settlement he disponed to his sisters, Ann Lyon and Margaret Lyon, and the survivor of them, and the heirs and assignees of the survivor, his whole estate, heritable and moveable, and particularly a dwelling-house in Vanburgh Place, Leith, and a dwelling-house at 45 Lothian Street, Edinburgh, as therein described, and he also thereby nominated his said disponees his sole executors. No trustees were appointed, and no legacies or directions were mentioned therein.

The codicil was in these terms—“Whereas upon the 13th November 1841 I disponed all my property to my two sisters Ann and Margaret Lyon, yet upon considering that my sister Ann is at present provided for, and that my aunt Margaret Brown is entirely dependent, I so far alter my foresaid disposition as to grant, assign, and dispone the whole which I may possess at my death to my sister Margaret, if my sister Ann is still provided for as she is at present, or otherwise by marriage, under the condition that she, Margaret, shall support her aunt Margaret Brown all the days of her natural life, and if she, Margaret Lyon, do marry or predecease my sister Ann, then in the first case, she, Ann Lyon, shall receive the half, and in the second, the whole property, &c.; provided always, that if both die without marrying, the property shall go in equal shares to my two brothers, George and David, or their heirs and successors. This codicil I write on the 19th day of August 1842 years (signed) John Lyon.”

On 18th January 1849 an instrument of sasine was expede and recorded on behalf of Ann and Margaret Lyon as regards the Vanburgh Place property, and on 12th August 1850 an instrument of sasine was expede and recorded as regards the property in Lothian Street. In both instruments of sasine the settlement and codicil were narrated, and sasine was given in the following terms:—“In virtue of which precept I hereby give sasine to the said Ann Lyon and Margaret Lyon, and the survivor of them, of the subjects and others above described, but always under burden of the codicil and addition and alteration and provisions and declarations and conditions thereof before specified;” those being the conditions mentioned in the codicil.

Ann Lyon died unmarried on or about 24th February 1886. She and Margaret Lyon had executed a mutual settlement on or about 29th June 1874, by which they conveyed their moveable estate to the survivor, but no disposition was made of heritage. Margaret Lyon died on or about 14th February 1887 unmarried, leaving a settlement dated 5th May 1886, by which she left and bequeathed to her nephew David Lyon, son of her late brother David Lyon, whom failing his issue equally, inter alia, the whole heritable property of which she might die possessed.

After Margaret Lyon's death this special case was presented, to which the parties were (1) David Lyon, who was the eldest son and heir-at-law of the deceased David Lyon, mentioned in the codicil, and (2) Robert Lyon, the eldest son and heir-at-law of the deceased George Lyon, also mentioned in the codicil, to whom and their heirs the testator John Lyon directed that his heritable properties should go in the event of his sisters both dying without being married. David Lyon the elder and George Lyon both predeceased Ann Lyon and Margaret Lyon.

It was maintained by the first party that his aunt Margaret Lyon was fiar of the heritable properties, and as such entitled to dispose of the same by deed inter vivos or mortis causa, and that having by her settlement conveyed the same to him solely he was entitled thereto to the exclusion of his cousin the second party; while the latter maintained that the codicil validly imposed a limitation on the absolute fee conferred by the prior settlement on Ann and Margaret Lyon, which limitation was duly engrossed in the sasines expede by them; that Margaret Lyon was not therefore entitled to, and could not defeat his right of succession, and that he was entitled to an equal pro indiviso share of both of the properties with the first party in terms of the codicil.

The questions of law were as follows—“(1) Do said heritable properties belong equally to the first and second parties to this case? Or (2) Do they belong solely to the first party?”

Argued for the first party—Under the codicil Margaret Lyon was made absolute fiar subject to two conditions, that she should not marry, and that she should not predecease Ann her sister. Neither of these conditions were fulfilled. The last clause of the codicil, on a sound construction, only applied in the event of Margaret predeceasing Ann. It did not import a third independent condition. If George and David Lyon, their heirs and successors, were to be taken as conditional institutes, then Margaret by succeeding had evacuated the destination to them; if they were substitutes, then her settlement had evacuated the substitution, the substitutes' right being unprotected.

Argued for the second party—(1) This was a case of protected substitution which was good in law against the voluntary acts of the institute— Ersk. iii. 8, 22. Such a restricted right in the institute was, looking to the words of the codicil expressed therein, but in any case such a restriction might be implied— Dyer v. Carruthers, May 27, 1874, 1 R. 943, and was here implied. (2) Alternatively, this was a case of a fee vested in Margaret, but subject to defeasance in the event which happened, of her death unmarried— M'Lay v. Borland, July 19, 1876, 8 R. 1124.

At advising—