Scottish Court of Session Decisions

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Cite as: [1908] SLR 545, [1908] ScotLR 545

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SCOTTISH_SLR_Court_of_Session

Page: 545↓

Court of Session Inner House First Division.

Saturday, March 7. 1908.

45 SLR 545

Jack's Executor

v.

Downie.

Subject_1Succession
Subject_2Testament
Subject_3Words Importing (1) Gift of Heritage and (2) Power of Sale.
Facts:

Terms of a testamentary writing which were held to carry heritage and to confer power to sell it.

Grant v. Morren, February 22, 1893, 20 R. 404, 30 S.L.R. 442, distinguished.

Headnote:

David Jack died on 22nd October 1906 leaving a will in the following terms:—“I, David Jack, Christmas-card publisher, residing at Fairview Strand, in the city of Dublin, hereby revoke all wills and testaments heretofore made by me; I appoint Archibald Hunter of Roselea Drive, Dennistoun, in the city of Glasgow, to be the sole executor of this my last will and testament. I direct my said executor immediately after my death to realise all my estate and pay all my just debts and testamentary expenses.… [ Then followed legacies to a grandchild and to nieces.] … I direct that the residue of my estate after the payment of the aforesaid legacies shall be divided equally between my wife Lucy Annie Jack, my son James Jack, and my son David Jack. I desire that my said wife Lucy Annie Jack shall have the choice of any of the furniture and books which she may desire, all remaining
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furniture or effects to be realised as aforesaid. I direct my said executor to place the realisation of my estate in the hands of Mr John Brown of 23 Exchequer Street, in the city of Dublin: In witness whereof I have hereunto signed my name this 3rd day of October 1905…. [ Then followed the signatures of the testator and two witnesses.]”

In addition to certain moveable estate in Dublin, the testator owned a heritable property situated at 151 Sword Street, Dennistoun, Glasgow. His executor being desirous of realising this property exposed it for sale, when it was purchased by Robert Downie, Glasgow.

Questions having arisen as to the executor's title to heritable property and his power to sell it, a special case was presented in which the executor was the first party, and Downie, the purchaser, the second party.

The contentions of parties were:—“The first party maintains that the whole estate, heritable and moveable, which belonged to the testator was validly and effectually conveyed to him by said will and testament, and that there is an implied power of sale therein. The second party maintains that the first party has no title to said heritable property, as it was not conveyed to him by said will and testament; that the said will and testament deals only with moveable estate, and that there are no words of direction or conveyance therein applicable to heritage in virtue of which a notarial instrument can be expede thereon in terms of the Titles to Land Consolidation (Scotland) Act 1868. He further maintains that even if the property were effectively conveyed to the first party under the said will and testament there is no power of sale given to him therein.”

The questions of law were:—“(1) Has the said heritable property which belonged to the deceased been validly conveyed under said will and testament to his said executor, the first party hereto? (2) In the event of the foregoing question being answered in the affirmative, Is it competent to expede a notarial instrument in favour of the first party on the foresaid will and testament in the form of Schedule L of the Titles to Land Consolidation (Scotland) Act 1868? (3) In the event of the first question being answered in the affirmative, Has the first party, as executor foresaid, power to sell said heritable property?”

Argued for the first party—The will carried the heritage. All that was necessary were words sufficient to show that the testator's intention was to include the heritage. That intention was clear from the words “all my estate.” The will was universal in style, and there was a strong presumption against partial intestacy. The case was ruled by the recent decision in Copland's Executors v. Milne and Others, January 16, 1908, 45 S.L.R. 314. Reference was also made to the Titles to Land Act 1868 (31 and 32 Vict. cap. 101), sec. 20, and to Aim's Trustee v. Aim, December 15, 1880, 8 R. 294, 18 S.L.R. 204; Forsyth v. Turnbull, December 16, 1887, 15 R. 172, 25 S.L.R. 168; M'Leod's Trustee v. M'Luckie, June 28, 1883, 10 R. 1056, 20 S.L.R. 714. The Executors (Scotland) Act 1900 (63 and 64 Vict. cap. 55) section 2, had assimilated the position of trustee and executor, and therefore no inference that the will did not deal with heritage could be drawn from the fact that an executor, as distinguished from a trustee, had been nominated.

Argued for the second party—The will read as a whole did not deal with heritable estate. It was clear from the expressions used that the testator meant to deal only with moveables. He appointed an executor, used no words applicable to heritage, and used words applicable to moveable estate. The only words hostile to that view were the words “all my estate,” and such words occurring in a “testament proper,” and in connection with the nomination of an executor, ought to be limited to moveable estate— Urquhart v. Dewar, June 13, 1879, 6 R. 1026, 16 S.L.R. 602; Grant v. Morren, February 22, 1893, 20 R. 404, 30 S.L.R. 442.

[The second question was not argued by either party, the Court indicating that it was a question for counsel and not for the Court.]

Judgment:

Lord President—The question before us is whether the executor of the late Mr Jack is in a position to give a good title to certain heritable property sold by him as executor, and that depends in the first place on whether the executor had right to the subjects in question, and secondly, whether he had power to sell them.

The first of these questions depends on the terms of the will, and on the 20th section of the Titles to Land Act 1868 (31 and 32 Vict. c. 101). I need not quote the section, for your Lordships are familiar with its terms. The whole point of the section turns on the question whether the words used by the testator show an intention to deal with heritable estate. If they do so, then the section provides that the mere absence of technical terms will not matter.

I think, looking to the terms of the will before us, there is no doubt that Mr Jack meant to dispose of his heritable estate, for he says, “I direct my said executor … to realise all my estate,” and then, after leaving various legacies, he goes on to direct him to divide the residue of the estate between his wife Lucy Jack and his sons James and David Jack.

Now, whether the use of the word “estate” would or would not in itself be sufficient to indicate that the will was meant to apply to heritable property, I think it is perfectly clear that when the words used are “all my estate,” the whole estate, both real and personal, was meant to be conveyed. If that is so, it is obvious that the executor has right to the heritable estate and that he has power to sell it. It would be absurd to suppose that the testator meant that the heritage was not to be realised but to be conveyed pro indiviso to the beneficiaries under the will. If the executor has power to sell it follows that he can give a good title to the purchaser.

I propose accordingly that we should

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answer the first and third questions in the affirmative. The second question is not one which should have been put to the Court.

Lord M'Laren—The 20th section of the Titles to Land Consolidation Act 1868 deals with the language necessary to pass estates from the dead to the living, and for the purpose of abolishing the peculiarity which existed in the old law with reference to heritable estate the statute made the provision that the language used to pass moveable estate should now be sufficient to pass heritable estate if it is used with reference to heritable estate. But the 20th section does not profess to solve the question what actual words will suffice to show that the testator intended to dispose of his heritable estate by will? Now I think the decisions upon the latter point are on the whole consistent, and they proceed upon the principle of ascertaining whether the testator had heritage in view when he made his will. In one case the word “property” was held to be sufficient to pass heritage, and the word “estate” seems to me to be quite as general and as sufficient to pass heritage unless where it is used in a more limited sense. I observe that in the case of Grant v. Morren, 1893, 20 R. 404, where it was held that the will was not habile to convey heritage, I expressed the view that the “estate” there conveyed was confined in meaning to such estate as an executor might administer. But that case is distinguished in two important elements from the case before us. First there was in Grant's case no formal gift or direction, but only a bare appointment of an executor to perform the duties of an executor; while here, after appointing an executor, the testator goes on to bequeath legacies and to direct that his estate shall be realised and divided. But I also agree with your Lordship in holding that the word “all” is important. In cases like that of Grant the words “my estate” may be controlled by subsequent expressions and by the terms of directions given to the executor, but that is only if the words themselves are ambiguous; and where, as in the present case, the word “estate” is joined with the word “all” there is no ambiguity, and there is no necessity for drawing inferences from other parts of the deed to explain what is already clear, and still less to limit the generality of a clause which on the face of it is a universal bequest of the testator's estate.

Lord Kinnear—I think that the first question in this case is solved by a consideration of two propositions, both of which have been stated by Lord President Inglis in two different cases, viz.—(1) that the first question in cases of this kind is whether words importing a gift have been used in a will or testament with reference to land, and (2) that that question must be answered in the affirmative if the words employed describe either heritable estate in particular or the testator's whole estate without distinguishing between heritable and moveable. If this is sound the application is easy, because the testator here directs that “all” his “estate” is to be realised, and then, after certain legacies have been paid, that the residue of “my estate” is to be divided between his wife and his sons. I do not think it can be disputed that if he had said in terms “all my estate, heritable and moveable,” his intention would have been quite plain in spite of the appointment only of an executor. It is just as plain in the will as it stands, because if a man has heritable as well as moveable estate the direction to realise “all my estate” is not carried out if only his moveable estate is realised.

Upon the question of the power to sell I think that follows as a matter of course, for the reasons stated by your Lordship.

Lord Pearson was absent.

The Court answered the first and third questions in the affirmative, and found it unnecessary to answer the second question.

Counsel:

Counsel for the First Party— A. M. Anderson. Agent— C. Strang Watson, Solicitor.

Counsel for the Second Party— Wark. Agent— W. J. Haig Scott, S.S.C.
1908