Scottish Court of Session Decisions

John Alexander Burnett, Kennington Park, London, and another, trustees acting under the trust-disposition and settlement of the late Mary Erskine Burnett, Balbithan House, Aberdeenshire ( first parties); Letitia Wilkins Burnett, Addleston, Surrey, and another, executors of the late Stuart Mowbray Burnett, Balbithan House aforesaid ( second parties); and Alexander George Burnett of Kemnay, Aberdeenshire, heir-at-law of the said Mary Erskine Burnett; and John George Burnett of Powis, Aberdeenshire, heir-at-law of the said Stuart Mowbray Burnett ( third parties), brought a Special Case, to determine their rights under a mortis causa disposition of certain heritable property in Aberdeen by the late Mrs Helen Burnett or Bannerman, who died on 23rd April 1804.

By the mortis causa disposition, dated 6th September 1854, the property was disponed “to and in favour of Charles John Burnett, presently residing in Edinburgh, my nephew, and the heirs of his body, equally among them, but with and under the special provision and declaration after mentioned; whom failing to and in favour of Mary Erskine Burnett, my niece and his sister, also presently residing in Edinburgh, and Stuart Moubray Burnett, at Cairuton, in the parish of Kemnay, my nephew, equally between them and their heirs and assignees whomsoever, heritably and irredeemably, all and whole that piece of ground lying in the Chanonry of Old Aberdeen.… But providing and declaring, as it is hereby specially provided and declared, that these presents are granted and to be accepted of under this express condition, that the said Charles John Burnett shall have no power or liberty to sell, alienate, or dispone said piece of ground and others before disponed, either onerously or gratuitously, or to borrow money on the same, whether he has lawful children or not, without the express consent of the said Mary Erskine Burnett and Stuart Moubray Burnett or the survivor of them, and all deeds granted by him without the consent of them or the survivor are hereby declared null and void so far as they can affect the property disponed.…”

Mrs Bannerman was survived by Charles John Burnett, who died on 12th August 1907 without leaving heirs of his body and without having executed any deed affecting the said heritable property. She was also survived by Mary Erskine Burnett and Stuart Moubray Burnett, who died respectively on 25th April 1890 and 9th January 1893, both leaving testamentary writings dealing with their whole estates.

The first and second parties maintained that Mary Erskine Burnett and Stuart Moubray Burnett were entitled each to a one-half pro indiviso share of the subjects either absolutely or subject to defeasance only in the event of Charles John Burnett having heirs of his body; and that the right thus vesting in Mary Erskine Burnett and Stuart Moubray Burnett passed to their respective testamentary trustees and executors, or executors and legatees in heritage, and was or became

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absolute in them on the death of Charles John Burnett without heirs of his body.

The third parties maintained that on a sound construction of the destination the said Charles John Burnett was fiar, that he was vested in the said subjects as such at the date of his death, and that he having died without heirs of his body and predeceased by the said Mary Erskine Burnett and Stuart Moubray Burnett, the third parties were entitled to succeed to the said subjects in equal shares, as heirs of provision under the said destination.

The questions of law were—“1. Were the subjects conveyed by the said disposition absolutely vested upon the death of Charles John Burnett in equal shares in the first and second parties as assignees and disponees of Mary Erskine Burnett and Stuart Moubray Burnett respectively? Or 2. Did the said subjects pass on the death of Charles John Burnett in equal shares to the third parties?”

Argued for the first and second parties—The condition burdening the right of Charles John Burnett precluded his having a fee. But as the fee must have vested in someone, it followed of necessity that it did so in Mary Erskine Burnett and Stuart Moubray Burnett, subject to defeasance in the event of Charles John Burnett leaving issue— Stewart v. Nicolson, December 2, 1859, 22 D. 72; M'Lay v. Borland, July 19, 1876, 3 R. 1124; Gregory's Trustees v. Alison, April 8, 1889, 16 R. (H. L.) 10, 26 S.L.R. 787; Forsyth v. Forsyth, February 25, 1905, 12 S.L.T. 778; Denholm's Trustees v. Denholm's Trustees, 1907 S.C. 61, 44 S.L.R. 42.

Argued for the third parties—Although limited as to his right of disposal of the property during the lives of Mary and Stuart Burnett, Charles John Burnett had a fee. He was in a better position as regards dealing with the property than an heir of entail, who was none the less a fiar. Alternatively he took a fiduciary fee— Turner v. Gaw, February 20, 1894, 21 R. 563, 31 S.L.R. 447. In any event there could not be vesting subject to defeasance in Mary and Stuart Burnett, as there was a destination-over in the case of each of them to their “heirs and assignees”— Bowman v. Bowman, July 25, 1899, 1 F. (H.L.) 69, 36 S.L.R. 959; Thompson's Trustees v. Jamieson. January 23, 1900, 2 F. 470, 37 S.L.R. 348; Findlay v. Mackenzie, July 9, 1875, 2 R. 909, 12 S.L.R. 597, per Lord President Inglis.