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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnston Petitioner [1899] ScotLR 36_529 (9 March 1899)
URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0529.html
Cite as: [1899] SLR 36_529, [1899] ScotLR 36_529
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SCOTTISH_SLR_Court_of_Session
Page: 529↓
Court of Session Inner House Second Division.
[Sheriff of Chancery.
Facts:
The purchaser of certain heritable subjects took the destination thereto in favour of herself in liferent, and after her death to her daughters A, B, and C, nominatim, “in conjunct fee and liferent, and to the heirs of their bodies, and to their assignees whomsover,” … whom failing to her sons D and E, nominatim, “jointly, and their heirs whomsoever,” but reserving power to herself at any time of her life, without consent of A, B, C, D, and E, “or any of them or their foresaids, to sell, burden, wadset, or affect with debt, or even gratuitously dispone the subjects, and generally to do every other thing thereanent as if she were absolute fiar.” The purchaser died survived by her daughters A and B, and predeceased by her daughter C, who died unmarried. Held that under the destination A and B took each a third share in the subjects, but had no right by accretion to the third share, which would have been taken by C if she had survived, and that this share, in terms of the destination, passed to D and E as conditional institutes.
In 1824 Mrs Clara Elizabeth Dickson or Sibbald, widow of William Sibbald, merchant in Leith, purchased a flat in Royal Circus, Edinburgh, from John Paton, builder in Edinburgh. The destination in the disposition of these subjects was taken in the following terms:—“To and in favour of the said Mrs Clara Elizabeth Dickson or Sibbald in liferent during all the days of her life, and after her death to Clara Elizabeth Sibbald, Jane Sibbald, and Mary Frances Sibbald, daughters procreated of the marriage between the said Mrs Clara Elizabeth Dickson or Sibbald and the said deceased William Sibbald, in conjunct fee and liferent, and to the heirs of their bodies, and to their assignees whomsoever, heritably and irredeemably, excluding the jus mariti of any husband whom they may hereafter marry: Declaring that in the event of the marriage of any of the said Clara Elizabeth Sibbald, Jane Sibbald, and Mary Frances Sibbald, the liferent right and interest in the said subjects belonging to such of them as may be married shall cease and determine, and shall accresce and belong to such of them as remain unmarried; and in the event of the whole of them being married, then and in that case their respective liferent interests shall revive and revert and belong to all of them in terms of the above destination; whom failing to and in favour of Alexander Sibbald and Charles Robert Sibbald, sons procreated of the marriage between the said Mrs Clara Elizabeth Dickson or Sibbald and the said deceased William Sibbald, jointly, and their heirs and assignees whomsoever; but with and under the reservation and power after written in favour of the said Mrs Clara Elizabeth Dickson or Sibbald, All and whole … But reserving always full power, faculty, and liberty to the said Mrs Clara Elizabeth Dickson or Sibbald at any time of her life, and without consent of the said Clara Elizabeth Sibbald, Jane Sibbald, Mary Frances Sibbald, Alexander Sibbald, and Charles Robert Sibbald, or any of them or their foresaids, to sell, burden, wadset, or affect with debt, or even gratuitously dispone, the subjects above disponed, and generally to do every other thing thereanent as if she were absolute fiar of the same.”
Sasine was taken upon the precept of sasine contained in this disposition conform to instrument of sasine dated 25th and recorded 30th November 1824.
Mrs Clara Elizabeth Dickson or Sibbald died on 24th February 1865, survived by two of her daughters, viz., Mrs Jane Sibbald or Johnston and Mary Frances Sibbald, and predeceased by her daughter Clara Elizabeth Sibbald, who died unmarried in the year 1835. Mrs Jane Sibbald or Johnston died on 15th April 1888.
In September 1898 David Henry Johnston, Mehama, Marion County, Oregon, United States of America, presented a petition to the Sheriff of Chancery, in which he set forth that the late Jane Sibbald or Johnston died last vest and seised in All and whole the one pro indiviso half of all and whole the subjects above mentioned, and that the petitioner was her eldest son and nearest lawful heir of provision in special in these subjects under and by virtue of the disposition before mentioned, and craved the Sheriff of Chancery to serve him as such heir of provision in special.
Proof having been led to establish the facts narrated supra, the Sheriff of Chancery ( Chisholm) on 1st November 1898 issued the following interlocutor:—“The Sheriff having considered the petition, proof, and productions, and heard counsel on behalf of the petitioner, Finds it proved that the late Jane Sibbald or Johnston
Page: 530↓
died last vest and seised in one-third pro indiviso of the subjects and others described in the petition, and not in one-half pro indiviso thereof as therein averred: Quoad ultra finds the facts stated in the petition proved, and serves and decerns the petitioner nearest and lawful heir of provision in special of the said Jane Sibbald or Johnston in the one-third pro indiviso of the subjects and others described in the petition, but always with and under the whole burdens, conditions, provisions, stipulations, privileges, and obligations, and declarations referred to in the petition, and decerns.” Note.—“In this case one of the three daughters predeceased her mother, and the claim of the petitioner rests on the assumption that the share which would have vested in this daughter had she survived, vested in her two surviving sisters; in other words, that the whole subjects vested in them to the extent of one-half pro indiviso in each. There are no words of survivorship. I am, however, asked to hold that these are implied by the gift to the three daughters in conjunct fee and liferent, and to their heirs and assignees. I do not think that the authorities warrant such a conclusion; the one-third to which the predeceasing daughter would have succeeded would have fallen into intestacy but for the destination-over. As it is, the share in my view vested in the two brothers or their heirs.”
The petitioner appealed, and argued—(1) The powers reserved to Mrs Sibbald were not limited to deeds inter vivos, and the effect was that she remained fiar until her death— Miller's Trustees v. Findlay, Nov. 6, 1896, R. 114; M'Laren on Wills, vol. ii. 1088. If this were so, the petitioner's mother took a half share on her mother's death. (2) The effect of the words “in conjunct fee and liferent” was that the petitioner's mother took a half share although there was no clause of survivorship.
At advising—
The destination in the disposition before us is in favour of Mrs Sibbald in liferent, and her three daughters in conjunct fee and liferent, and their heirs. Under such a destination each of the daughters takes a fee of one-third, but no accruing right to the fee falling to a predeceaser. There is no provision for such third going to the survivors. Failing the daughters, or any of them, their or her share goes, by virtue of another part in the destination, to Mrs Sibbald's sons.
Clara Sibbald predeceased her mother unmarried, and therefore nothing vested in her. The only question which remains is, whether the right to one-third pro indiviso, which she would have taken had she survived her mother, accresced to her surviving sisters Jane (to whom the petitioner asks to be served heir) and Mary, or passed to the conditional institutes Alexander and Charles Robert Sibbald.
I am of opinion with the Sheriff that under a destination in the terms quoted, there is no accretion, there being no words implying a right of survivorship in the fee. This is the construction which has been settled by a long course of decisions. The survivors are by the deed expressly given a right to a lapsed share of the liferent by accretion so long as they remain unmarried, and if the deed had not made special provision in that matter, the law would have implied a right of survivorship as regards the liferent. But under such a destination, after the termination of the liferent, the whole of the fee does not go to the survivors' heirs, but falls to be divided (in this case) into three, two thirds of which go to the heirs of the two sisters who survived their mother, and the one-third which would have fallen to the one who predeceased her to the conditional institutes in terms of the ulterior destination—Ersk. iii. 8, 35.
The result is that Jane died vested only in her own one-third of the fee, and the petitioner, her heir, is entitled to no more. Clara, the predeceaser's, share passed to Alexander and Charles Sibbald or their heirs as conditional institutes.
The
The Court dismissed the appeal, and affirmed the interlocutor appealed against, and remitted to the Sheriff of Chancery to proceed.
Counsel for the Petitioner and Appellant— T. B. Morrison. Agents— Watt, Rankin, & Williamson, S.S.C.