Scottish Court of Session Decisions

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Cite as: [1903] ScotLR 40_772, [1903] SLR 40_772

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SCOTTISH_SLR_Court_of_Session

Page: 772↓

Court of Session Inner House Second Division.

Friday, July 10. 1903.

40 SLR 772

Howe's Trustees

v.

Howe's Judicial Factor.

Subject_1Succession
Subject_2Liferent or Fee
Subject_3Liferent with Power of Disposal of Fee
Subject_4Exercise of Power Necessary to Create Right of Fee — Power not Exercised — Destination-over — Vesting — “Heirs whomsoever” — Period at which Heirs to be Ascertained.
Facts:

By antenuptial contract of marriage a husband disponed and assigned the whole estate which might belong to him at his death to his wife in liferent and to the children of the marriage, and failing children to his heirs whomsoever in fee, with power to the wife to apply for her personal comfort, or for the maintenance and education of the children, part or even the whole of the fee, and also with power to her, in the case of failure of children, to test upon or execute conveyances inter vivos or settlements mortis causa of the estate, so as to sopite the destination to the husband's heirs whomsoever, but in case these powers were not exercised the estate, or the residue thereof, at her death should devolve upon the heirs as before provided as if the above powers had not been given.

The husband died without issue survived by his wife. Five years afterwards the wife died without exercising any of the powers conferred on her by the marriage-contract.

Held that the wife had only a right of liferent, with power to convert it into a fee, and that as she had not exercised that power the fee had vested in the person who was the husband's heir whomsoever as at the date of his death.

Headnote:

By antenuptial contract of marriage, dated 19th August 1856, the late Alexander Hamilton Howe, surgeon, disponed, assigned, and conveyed his whole estate, heritable and moveable, then belonging to him or which might belong to him at his death, to Anne Forbes Robertson, his wife, “in liferent in case she survives him, and to the child or children to be procreated of the said intended marriage, and failing such child or children by non-existence, or predecease of the liferentrix, but without prejudice to the powers afterwards conferred on the said Ann Forbes Robertson, to the heirs whomsoever of the said Alexander Hamilton Howe in fee, but with power to the said Ann Forbes Robertson in case she may desire the same for her own personal comfort or for the maintenance and education of such child or children of the marriage, or the promotion of their prospects in life, to use and apply for these purposes such part or even the whole (as she may see needful and proper) of the fee or capital of the said Alexander Hamilton Howe's means and estates before conveyed, and that by the purchase of an annuity or annuities or otherwise as she may approve, and also with power to her in case of the failure of children to test upon or execute conveyances inter vivos or settlements mortis causa of the said means and estate, or the reversion thereof, so as to sopite the above destination to the heirs whomsoever of the said Alexander Hamilton Howe, but in case these powers be not exercised then said means and estate, or the residue thereof at her death, shall devolve upon the heirs of the said Alexander Hamilton Howe as before provided, and as if the above power of testing or conveying inter vivos or mortis causa had not been given; and for conferring on the said Ann Forbes Robertson these ample powers the said Alexander Hamilton Howe dispones and conveys to her primarily, in trust for the foresaid purposes, the fee of the said heritable and moveable property belonging and which may belong to him at his death, and binds and obliges his heirs to execute in her favour all deeds and conveyances necessary.”

Dr Howe died without issue on 25th July 1895 leaving estate worth between £6000 and £7000. He was survived by his wife, who died on 6th December 1900.

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By her trust-disposition and settlement, dated 21st April 1886, Mrs Howe conveyed her whole means and estate to trustees for the purposes therein specified. By a codicil dated 1st August 1895 Mrs Howe provided that no part of the capital of the means and estate of Dr Howe conveyed to her under the antenuptial contract of marriage should be held to be included in the conveyance to her trustees under her trust-disposition and settlement.

Dr Howe's sole heir and next of kin at the time of his death was his sister Mrs Jessie Hamilton Howe or Orr, who died on 27th December 1899. The heirs whomsoever of Dr Howe as at the date of Mrs Howe's death were Mrs Jane Galt Orr or Martin, a daughter of Mrs Orr, and the three children of the deceased Mrs Anne Maria Orr or Kilpatrick, another daughter of Mrs Orr.

In these circumstances a question arose as to the person or persons entitled to Dr Howe's estate under the marriage-contract. For the settlement of this question a special case was presented to the Court. The parties to the case were—(1) the marriage-contract trustees, (2) the judicial factor on Mrs Orr's estate, (3) the three children of Mrs Kilpatrick and their curator bonis and factor loco tutoris, (4) Mrs Martin, (5) Mrs Howe's next of kin, and (6) Mrs Howe's residuary legatees.

The questions of law were—“(1) Did Dr Howe's estate vest in Mrs Orr as his heir whomsoever at the date of his death? (2) Did Dr Howe's estate vest in the third and fourth parties as his heirs whomsoever at the date of the death of the liferentrix Mrs Howe? (3) Did Dr Howe's estate vest in Mrs Howe, and on her death fall to the fifth parties as her next of kin?

Argued for the second party—The fee of Dr Howe's estate vested at his death in Mrs Orr as his sole heir in moveables and in heritage, subject to the exercise by his widow of the powers of disposal conferred by the marriage-contract. As these powers werenever exercised by Mrs Howe the estate belonged to the second party as judicial factor on Mrs Orr's estate. A liferent with power of disposal of the fee did not constitute a fee where there was a destination-over—M'Laren on Wills, sec. 2023; Morris v. Tennant, June 7, 1853, 25 S.J. 432, aff. July 6, 1855, 27 S.J. 546; Rattray's Trustees v. Rattray, February 1, 1899, 1 F. 510, 36 S.L.R. 388. The power of disposal of the fee not having been exercised by the liferentrix, the estate belonged to Mrs Orr, the heir whomsoever of the husband at the time of his death— Lord v. Colvin, July 15, 1865, 3 Macph. 1083.

Argued for the third and fourth parties—They agreed with the second party that the fee vested in the heirs whomsoever of Dr Howe. But these heirs must be ascertained at the date of the death of the liferentrix. Either (1) vesting was postponed till the death of Mrs Howe, the liferentrix.—An unlimited power was given to the liferentrix of using and disposing of the estate either during her life or by testament. Any vesting of the residuum must be postponed till her death, and the heirs whomsoever must be sought for as that date— Reddie's Trustees v. Lindsay, March 7, 1890, 17 R. 558, 27 S.L.R. 514; Thompson's Trustees v. Jamieson, January 26, 1900, 2 F. 470, 37 S.L.R. 346. The case of Lord v. Colvin was distinguished from the present—see opinion of Lord Deas, 3 Macph. 1093. Or otherwise (2) the fee of the estate vested in Mrs Howe subject to a substitution in favour of the heirs whomsoever of her husband.—The liferent of the estate coupled with an absolute jus disponendi amounted to a fee— Rollo v. Rollo, January 26, 1843, 5 D. opinion of Lord Cuninghame, 452; Alves v. Alves, March 8, 1861, 23 D., opinion of L.J.-C. Inglis, 717. Mrs Howe having declined to deal with the fee, the fee passed to the heirs whomsoever at the date of her death as substitutes— Morris v. Tennant, supra, 27 S.J., opinion of Lord Chancellor Cranworth, p. 543. The estate should therefore be divided equally between the third and fourth parties per stirpes.

Argued for the fifth parties—They adopted the third and fourth parties' argument in so far as they maintained that the fee of Dr Howe's estate vested in Mrs Howe. The fee having vested in her, and she not having dealt with it in her will, it fell to them as her next-of-kin.

Judgment:

Lord Trayner—This case arises under the marriage-contract of the late Dr Howe, by which his estate was conveyed to his wife in liferent and to the children of the marriage in fee, whom failing to his heirs whomsoever. He also granted his wife an absolute right of disposal over the estate. The argument which has been addressed to us by the fifth parties is to the effect that there was conferred upon Mrs Howe under the marriage-contract the fee, and not merely the liferent of the estate. A liferent coupled with an absolute right of disposal is regarded as a fee in the general case, but not in every case, and it has been determined that where the exercise of the power of disposal is necessary in order to create a right of fee, no such right is created as long as the power remains unexercised. On this point I adopt the language of Lord M'Laren upon wills (sec. 2020, seq.), and I am therefore of opinion that while Mrs Howe, by exercising the power conferred upon her, might have turned her right into one of fee, she not having done so, her right at the time of her death was one of liferent, and nothing more.

If Mrs Howe's interest was only that of a liferent, and the fee belongs to the heirs of Dr Howe, the next question is, at what point of time are we to look in determining who the heirs are? It is to be observed that the destination is to Mrs Howe in liferent, and failing children to the heirs whomsoever of Dr Howe—that is, to the persons who would have succeeded had Dr Howe died intestate. I think there is no doubt that in dealing with an intestate succession we must look for the heirs of the person dying intestate as at the date of his death, and that I think is the rule to be applied

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here. The “heirs whomsoever” are the heirs at the date of Dr Howe's death, and not at the date of the death of the liferentrix. I am therefore of opinion that the first question should be answered in the affirmative and the second and third in the negative.

Lord Moncreiff—I am of the same opinion. The question is whether Mrs Howe can be held under the terms of her marriage-contract to have a right of fee in Dr Howe's estate. She had a liferent and a power to dispose of the estate inter vivos or to test upon it. This power she never exercised; indeed, she expressly disclaimed her intention of disposing by her will of any portion of the marriage-contract funds. I agree with Lord Trayner that she might have converted the right she had into one of fee, but she did not do so, and therefore at her death the succession opened to the heirs of Dr Howe. On the second question I think the destination to the “heirs whomsoever” was to the heirs at the date of Dr Howe's death and not at the death of his widow.

Lord Justice-Clerk—I am of the same opinion. I think this lady had simply a faculty of disposing of the fee which she never exercised.

Lord Young was absent.

The Court answered the first question of law in the affirmative, and the second and third questions of law in the negative, and declared accordingly, and decerned.

Counsel:

Counsel for the First Parties— J. H. Millar. Agents— Carment, Wedderburn, & Watson, W.S.

Counsel for the Second Party— Cullen. Agents— Gordon, Falconer, & Fairweather, W.S.

Counsel for the Third Parties— Constable. Agents— H. & H. Tod, W.S.

Counsel for the Fourth Party— W. C. Smith, K.C.— Lamb. Agents— R. R. Simpson & Lawson, W.S.

Counsel for the Fifth and Sixth Parties— Lippe. Agents— Erskine, Dods, & Rhind, S.S.C.
1903