Scottish Court of Session Decisions

Peter Paul, grocer in Greenock, died in 1832, leaving a trust-disposition and settlement, by which he conveyed his whole estate, heritable and moveable, to trustees for, inter alia, the following purpose:—“In the Third place, my said trustees shall dispone, convey, and make over my whole heritable and moveable means and estate … to and in favour of Mary and Andrew Paul, children procreated of the marriage between me and the deceased Jean Cameron, my former wife, and Janet, Ann, Jean, Catherine, Peter, and William Pauls, and any other child or children that may be procreated of my present marriage, equally among them in liferent, for their liferent use allenarly, but excluding always the jus mariti and right of administration of the husbands of my daughters, and the diligence of their creditors, and the creditors of my sons, and the share of each liferenter to the children to be lawfully procreated of his or her body equally among them, males and females, in fee; and failing any of my children without leaving a child or children lawfully procreated of his or her body, or failing such issue without leaving lawful issue, then to the survivors of my children equally among them in liferent, excluding always the jus mariti and right of administration of the husbands of my daughters and the diligence of their creditors, and the creditors of my sons, and the share of each liferenter to the children to be lawfully procreated of his or her body equally among them, males or females, in fee; it being expressly understood that my grandchildren, upon their parents' decease, are to be entitled to the share of my means and estate falling to the parent in liferent, equally among them, whether males or females, in fee.”

In 1847 John Walker, who was then the sole surviving trustee under the said trust-disposition, on the narrative that he was desirous to dispossess himself of the trust estate, granted a disposition containing the following clause:—“In the Second place, I do hereby give, grant, assign, dispone, convey and make over to and in favour of the said Mary Paul, spouse of Andrew Paul, in the employment of the Glasgow, Paisley, and Greenock Railway Company at Bishopton, Andrew Paul, spirit-dealer in Greenock, Janet Paul, spouse of Duncan Macdougall, grocer in Greenock, Jean Paul, spouse of Walter M'Symon, shipmaster in Greenock, Peter Paul, seaman in Greenock, Catherine Paul, residing in Greenock, and William Paul, seaman in Greenock, the only surviving children of the said Peter Paul, equally among them in liferent, for their liferent use allenarly, but excluding always the jus mariti and right of administration of the husbands of the said Mary, Janet, Jean, and Catherine Paul, and the diligence of their creditors, and the creditors of Andrew, Peter, and William Pauls, and the share of each liferenter to the children to be lawfully procreated or already procreated of his or her body, equally among them, males and females, in fee; and failing any of the said children without leaving a child or children lawfully procreated of his or her body, or failing such issue without leaving lawful issue, then to the survivors of the said children equally among them in life-rent, excluding always the jus mariti and right of administration of the husbands of the daughters and the diligence of their creditors and the creditors of the sons, and the share of each liferenter to the children procreated or to be lawfully procreated of his or her body equally among them, males or females, in fee, it being expressly understood that the grandchildren of the said Peter Paul upon their parent's decease are to be entitled to the share of his means and estate falling to the parent in liferent equally among them, whether males or females, in fee, all and whole the just and equal seven-eighth parts or shares of the whole lands and heritages which belonged to the said Peter Paul, and generally conveyed to said trustees by said settlement.” The remaining one-eighth part or share was conveyed by the same disposition to a grandson of Peter Paul, the testator.

Mrs Janet Paul or Macdougall, one of the disponees referred to in the above disposition, took infeftment on this disposition for her liferent interest only. She died at Caulfield, in the colony of Victoria, on 16th January 1890.

In 1900 Dugald Græme Macdougall and another, being the children of Mrs Janet Macdougall's eldest son who had predeceased her, and Mrs Catherine Johnstone Macdougall or Corney and others, being the surviving children of the said Mrs Janet Macdougall, presented a petition to the Sheriff of Chancery, in which, after narrating the trust settlement and the disposition mentioned above, they prayed to be served as “nearest and lawful heirs of provision in general to the said Mrs Janet Paul or Macdougall, under and by virtue of said trust-disposition and settlement and disposition.”

There was no opposition to the petition.

After a proof, the Sheriff of Chancery (Chisholm) issued the following interlocutor:—“The Sheriff having considered the petition, proof, productions, and whole process, finds that the deceased Mrs Janet Paul or Macdougall died at Caulfield, Melbourne, in the colony of Victoria, on the

Page: 63↓

16th day of January 1890, and had at the time of her death her ordinary or principal domicile furth of Scotland: Finds that the petitioners Dugald Græme Macdougall and Mrs Marion Macdougall or Laidlaw are children of the deceased Dugald Macdougall: Finds that he was the eldest son of the said Mrs Janet Paul or Macdougall: And further, Finds that the said Dugald Macdougall has left no other children or issue of children now surviving: Finds that the petitioners Mrs Catherine Johnstone Macdougall or Corney, Mrs Margaret Macdougall or Williams, Mrs Ann Jane Macdougall or Paterson, and James Macdougall, are all children of the said Mrs Janet Paul or Macdougall: Finds that she has no other children or issue of children now surviving other than as above mentioned: Finds that under the destination in the disposition founded on, the said Mrs Janet Paul or Macdougall was only a liferenter for her liferent use allenarly, and that there is nothing in her hæreditas jacens which requires to be taken out of it by a service: Finds further, that the petitioners are not heirs of provision to her under and by virtue of the trust-disposition and settlement and the said disposition, both mentioned in the petition: Therefore refuses the prayer of the petition, and decerns.”

Note.—“In this case I am of opinion, on the authority of the case of Maule ( 3 R. 831), that the service craved is not competent. The petitioners claim service as heirs of provision under two deeds—(1) a trust-deed, in which there is no conveyance, hut merely a direction to convey to the person to whom they are claiming to be served heirs of provision—viz., Mrs Janet Paul or Macdougall; and (2) a disposition in implement of the direction in the trust-deed. By these writs the said Mrs Janet Paul or Macdougall has only a liferent for her liferent use allenarly, and there is a destination-over to her children. In these circumstances I do not think that the petitioners are heirs of provision under the deeds.”

The petitioner appealed to the Court of Session, and argued—The prayer of the petition should be granted. The result of the destination was to vest a liferent in the parent with a fiduciary fee for the children nascituri. Under such a destination it was the established practice to make up the children's title by service as heirs of provision in general—Duff's Feudal Conveyancing, p. 447; Montgomery Bell's Lectures (3rd ed.), p. 1105. That was the only way in which the petitioners could obtain a marketable title, because only in that way could it be established that they were the only surviving children of the liferenter. This form of title had been sustained in Creditors of Carleton v. Gordon, Feb. 8, 1748, M. 14, 366-14, 368; Dundas v. Lord Dundas, Jan. 23, 1823, 2 S. 145; Peacock v. Glen, June 22, 1826, 4 S. 742; and Andrews v. Lawrie, Dec. 12, 1849, 12 D. 344. It was also approved by Lord Deas in Ferguson v. Ferguson, March 19, 1875, 2 R. 627, at p. 633. There was nothing in the decision in Maule (June 14, 1876, 3 R. 831) to necessitate an alteration in this practice. That case decided that the fiduciary fee ceased on the death of the fiduciary fiar, and therefore was not in his hæreditas jacens to be taken up by service. At the most that created a logical difficulty, but did not, expressly or by implication, render incompetent a method of making up a title which was sanctioned by practice, and was the only convenient way of obtaining a marketable title to the subjects.