Scottish Court of Session Decisions

Walter Whyte Pollok, sometime writer in Glasgow, died on 3rd September 1899, leaving a trust-disposition and settlement and codicils thereto.

By codicil dated 5th October 1895 the truster, in the second place, directed his trustees to dispone, convey, and make over to and in favour of his nephew John Anderson and the heirs-male of his body, whom failing, his nephew William Pollok John Anderson and the heirs-male of his body, certain lands and others “now belonging to me, so far as the same shall belong to me at my death, but under all burdens affecting the same, … and that with entry to said several lands, subjects, and others as at the date of my death.” Amongst the subjects in the second place directed to be disponed was “that property in Saint Ninian's Street, Hutchesontown, Glasgow, which lately belonged to the said Robert Pollok.”

The testator directed his trustees to convey and make over the residue of his heritable and moveable means and estate to other relatives in certain proportions.

Prior to his death the testator had received notice that the Corporation of Glasgow desired to acquire from him, under the Glasgow Improvements Act 1897, the property in St Ninian's Street above mentioned; and he had, by letters dated 18th and 22nd August 1899, entered into an agreement to sell the said property to the Corporation at the price of £1051, 10s. 4d., with entry as at Martinmas 1899. The testator died on 3rd September 1899 without having executed any conveyance of this property. Thereafter his trustees executed a conveyance of the subjects in favour of the Corporation, with entry as at Martinmas 1899, and received payment of the price, which amounted after adjustment to £1049, 6s.

Questions having arisen among the beneficiaries as to the right to the said sum of £1049, 6s., a special case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) the testamentary trustees of the deceased, (2) John Anderson, (3) the residuary legatees.

The second party maintained that he was entitled to payment of the said sum of £1049, 6s., with the interest accrued thereon, on the ground that the said heritable subjects had not been conveyed by the truster to the Corporation of Glasgow as at the date of his death and that the property in them at that date was still in the truster.

The third parties maintained that the said subjects having been sold to the Corporation of Glasgow before the death of the truster, the price received for them became residue of the estate and fell to be paid to the third parties as directed by the truster in his codicil of 5th October 1895.

The questions of law for the opinion and judgment of the Court were:—“Are the first parties, as Mr Walter Whyte Pollok's trustees, bound in terms of the said codicil of 5th October 1895 to pay over the said sum of £1049, 6s., with the interest accrued thereon, to the second party as surrogatum for the said heritable subjects purchased by the Corporation of Glasgow? Or are

Page: 325↓

they bound to pay over the said sum and interest accrued thereon to the third parties as part of the residue of the truster's estate in the proportions directed by him in the said codicil?”

Argued for the second party—The only question was whether the subjects in question belonged to the testator at the time of his death; for if so, then they were included in the gift to the second party. It was clear that they did belong to the testator. He was feudally vested in them, and he was also the beneficial owner. The trustees would therefore have been bound to convey them to the second party under the burden of the contract to sell to the Corporation. But the fact that the trustees had conveyed the subjects directly to the Corporation could not affect the second party's right, and he was now entitled to receive the price. The case of Heron v. Espie, June 3, 1856, 18 D. 917, had no bearing on the present case.

Argued for the third parties—(1) This was a special legacy of certain heritable subjects, and it had been adeemed. That was the result of what had taken place here.— Chalmers v. Chalmers, November 18, 1851, 14 D. 57; Farrar v. Earl of Winterton (1842), 5 Beavan, 1; Davidson v. Davidson, November 14, 1901, 39 S.L.R. 106. (2) If the subjects did not belong to the testator at the time of his death the second party had no claim, and the price was payable to the third parties under the residuary clause. The case of Heron v. Espie, supra, decided that in the case of a sale under statutory compulsory powers, which was the case here, the property passed from the seller to the purchaser as soon as notice was served, and the seller's right thereafter was merely a right to demand payment of the price. That rule was not affected by the circumstance that the price had been fixed by agreement; the right to the property had passed at the time notice was served. The subjects therefore did not belong to the testator at the time of his death.