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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Henderson's Trustees Petitioners [1911] ScotLR 424 (04 February 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0424.html
Cite as: [1911] ScotLR 424, [1911] SLR 424
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SCOTTISH_SLR_Court_of_Session
Page: 424↓
Court of Session Inner House Second Division.
[Sheriff Court at Cupar.
Facts:
By disposition dated May 1878 Mrs L. and spouse disponed certain heritable subjects in Cupar to H. and spouse in conjunct fee and liferent, and to the longest liver of them in fee and their assignees, whom failing to the children of their marriage equally. Haymount, the dwelling-house of H. at Cupar, was built on part of the subjects thereby disponed, H. died in 1907 predeceased by his wife and survived by one son and three daughters. He left a trust-disposition and settlement dated 10th July 1907, whereby he left his whole estate to trustees for division among his family in certain specified proportions. The settlement contained no express clause of revocation of the special destination in the disposition. It, however, inter alia, made the following provision:—“I wish my family and their aunt Miss J. H. to reside together at Haymount; and I direct my trustees to apply the whole or any part of the revenue of my estate, including profits of business, for the maintenance of my daughters and their said aunt while residing together, … and that until my youngest daughter is twenty-one years of age, and as long thereafter as may be considered suitable.”
Held that the settlement, in respect of the provision therein contained with regard to residence at Haymount, revoked the special destination in the disposition of 1878.
Samuel Wallace Johnston and William Duncan Patrick, both of Cupar, trustees
Page: 425↓
of the late William Henderson, of Haymount, corn merchant there, brought a petition in the Sheriff Court at Cupar under sec. 10 of the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94) for authority to make up title to certain subjects in Cupar. By a disposition dated 10th and recorded 15th May 1878, Mrs Landale and spouse had disponed certain heritable subjects in Cupar to the foresaid William Henderson and Mrs Margaret Hill Hume or Henderson, his wife, in conjunct fee and liferent, and to the longest liver of them in fee and their assignees, whom failing to the children of their marriage equally. Mrs Henderson died in February 1886 and William Henderson in September 1907. He was survived by one son, John William Henderson, and three daughters. He left a trust-disposition and settlement dated 10th July 1907, whereby he left his whole estate, heritable and moveable, to trustees for the following purposes, inter alia—“( Thirdly) I wish my family and their aunt, Miss Jemima Thoms Hume, to reside together at Haymount, and I direct my trustees to apply the whole or any part of the revenue of my estate, including profits of business, for the maintenance of my daughters and their said aunt while residing together, including allowance of £20 per annum to said Miss Jemima Thoms Hume so long as she resides with my daughters, and that until my youngest daughter is twenty-one years of age, and as long thereafter as may be considered suitable: ( Fourthly) I direct my trustees when they find it convenient after my youngest daughter is twenty-one years of age to realise my estate and divide it, the division to be as follows, viz.—£500 sterling to be set aside and invested, and the revenue thereof paid over to the said Miss Jemima Thoms Hume as the same is received during all the years of her life from the date of her ceasing to reside with my daughters, said £500 to be divided equally among my family on the death of the said Miss Jemima Thoms Hume; (2) £1000 sterling to be paid to my said son or his heirs; (3) £1500 to each of my daughters and their respective heirs; and (4) the residue or remainder of my estate, if any, to be divided equally among my daughters or their heirs, declaring that said sum of £1000 sterling shall be paid to my said son only in the event of his having carried on said business for behoof of my family during the whole period of my youngest daughter being under twenty-one years of age, and that if my estate shall not be sufficient to provide in full £6000 sterling (including said £500 sterling to be set aside for the said Miss Jemima Thoms Hume), said sum of £1000 sterling for my son, £1500 sterling for each of my daughters, and £500 sterling for behoof of the said Miss Jemima Thoms Hume, shall be proportionately diminished or reduced.”
The trustees, in respect of certain debts due to the estate by John William Henderson, obtained decree of adjudication on 2nd June 1910 of the one-fourth pro indiviso share of the subjects contained in the disposition by Mrs Landale and spouse to which he might establish a right in his person were he served as an heir of provision to his father under the destination therein contained, together with the dwelling-house now known as Haymount, Cupar, built on part of the said land.
Thereafter the trustees brought this petition. They proceeded upon the averment “that John William Henderson was one of the four heirs of provision in special of the William Henderson under the fore-said disposition, and as such in right of one-fourth pro indiviso part or share of the lands and others therein described, but had only a personal right thereto,” and they founded on the decree of adjudication. They craved the Court to find that they were entitled to procure themselves infeft in the said one-fourth pro indiviso share.
On 5th December 1910 the Sheriff-Substitute (Armour Hannay) refused the prayer of the petition.
Note.—“… William Henderson died in 1897 predeceased by his wife. He left a trust settlement dated 10th July 1897 under which he disponed his whole estate to trustees with directions to realise it and divide it amongst his children in such a way that his three daughters were to receive the greater part of the estate.
The question raised by this application is whether the settlement evacuates the destination under which the testator Henderson acquired right to the subjects — if so, this application must be refused. It appears to me that it does. Admittedly it is a question of intention. What did the testator Henderson intend with regard to the distribution of his estate? I think there can be no possible doubt that he wished it divided according to the settlement.
I have examined the authorities quoted very carefully and have read the settlement more than once, and the only conclusion I can come to is that the latter was intended to revoke, and did in point of fact revoke, and evacuate the destination in the former disposition.
The following authorities were referred to and have been considered:— Don and Others (Webster's Trustees) v. Webster, 1876, 4 R. 101, 14 S.L.R. 51; Currie v. M'Laren, 1899, 1 F. 684, 36 S.L.R. 494; Campbell v. Campbell's Trustees, 1903, 11 S. L. T. 441; Perrett's Trustees v. Perrett, 1909, 1 S.L.T. 302; Low and Others (Mrs Agnes Garvie or Wilson's Trustees) v. Wilson, decided by the Second Division 6th March 1903, but not reported.”
The petitioners appealed to the Court of Session, and argued — Two deeds — the special destination and the general disposition—were in existence. They must both be given effect to if possible. Admittedly it was a question of intention. When the testator—as here—was a party to the special destination, it was practically his disposition quoad the property affected. The rule was that a special destination was not evacuated by a general settlement subsequently executed by the maker of the destination. A deed in which a party concurred
Page: 426↓
was his own deed. The case was different where the destination was made by a stranger— Campbell v. Campbell, December 11, 1878, 6 R. 310, 16 S.L.R. 280, and July 8, 1880, 7 R. (H.L.) 100 (Lord Chancellor at 101, and Lord Hatherley at 104), 17 S.L.R. 807. There must be unequivocal indication of intention to revoke the destination— Campbell v. Campbell's Trustees, November 21, 1903, 11 S.L.T. 441 (Lord Kyllachy at 442). Here there was no such indication, but merely a general conveyance of the testator's estate. Also it was important to observe (1) that there was no clause of revocation, and (2) that there was a declaration that the bequests should suffer proportional diminution in event of the estate proving insufficient. The special destination would be held to be evacuated where the purposes of the settlement could not receive effect if it stood — Campbell v. Campbell's Trustees ( sup. cit.); Perrett's Trustees v. Perrett, 1909 S.C. 522 (Lord President at 527), 46 S.L.R. 453. Where there was practically nothing left if the destination stood, then it was held to be revoked. But in the present case there would only be a shortage of £127 in carrying out the settlement if Haymount were excluded therefrom.
I regret for some reasons to come to that conclusion, because there has been considerable expense already caused in pursuance of an opinion to the effect that the special destination here must be given effect to, notwithstanding the general settlement, and that expense will be thrown away should we now hold that the general settlement must rule and have the effect of evacuating the destination in the disposition of this particular property. However, we must decide the case on its legal grounds apart from considerations of mere convenience or expense; and certainly it is matter so far of congratulation that the expense of making up a title should not be very great.
We have had several cases quoted to us, but I do not know that I need go into them in detail. I wish to point out, however, that the Court is not in a very favourable position for giving an exhaustive opinion on all the points which suggest themselves in a case such as the present. For one thing, there is no contradictor here, and the decision we are giving lacks the authority it would have had had there been a contradictor, and had we had the case argued to us on both sides. Not only is there no contradictor to put the various views before us that might have been put by a person holding that character, but we have not a record or special case or statement of surrounding facts and circumstances of any kind; though I am ready to accept Mr Christie's assurance that there would be only a shortage of £127 in carrying out the purposes of the disposition were the property of Haymount to be excluded from the operation of the trust. We are not told anything about the rest of the estate, and we are not told the value of Haymount, and, in short, we have few of the surrounding facts before us which might serve to throw light on the question at issue by showing the circumstances under which the deeds were executed. But apart from that deficit of £127 which would be caused were the special destination to be given effect to, we have what I cannot help viewing as a very important clause in this deed showing that the testator contemplated in his trust-disposition and settlement that Haymount would fall under it, and that he made such provisions therein as necessarily implied a revocation of the special destination contained in the disposition of that property. Where the terms of a destination have been made by a third party it is not in as strong a position as where it has been made by the party himself, but I do not think we need to draw any distinction of that kind here, for I think the third purpose of the trust deed plainly shows that the testator intended that this property of Haymount should be carried by the general dispositive clause of his whole heritable and moveable estate to his trustees, and should be administered by them in terms of the trust purposes. Now that provision is this—“I wish my family and their aunt, Miss Jemima Thoms Hume, to reside together at Haymount, and I direct my trustees to apply the whole or any part of the revenue of my estate, including profits of business, for the maintenance of my daughters and their said aunt while residing together;” and then there is a special allowance to Miss Thoms Hume. Now this imports a direction to the trustees to make over the use of Haymount to his family and Miss Hume so long as they should live together after the testator's death, and also to give them an allowance to enable them to live at Haymount, which has been described to us as a large and commodious residence. Now that being expressed, the trustees upon whom it lay to give this use of Haymount to his family and their aunt would not be in a position to do so unless it be held that Haymount was carried by the trust-disposition and settlement, because if it fell under the special destination in the disposition of 1878 it might, for example, have happened as matter of legal right that as soon as Mr Henderson was dead the fiars under that disposition might have sold by consent or under an action of division and sale the property of Haymount, and thus defeated this third purpose which I have read. Accordingly I think that leads us to this conclusion, that the two deeds cannot stand together, and if that be so, it necessarily follows that the later deed must be held impliedly to revoke the former, and the general disposition must accordingly be held impliedly to revoke the special destination. I think that in the said third purpose we find what Lord Kyllachy in one of the cases quoted to us described as an unequivocal indication of intention to revoke on the part of the testator, and apart from what may be said
Page: 427↓
On these grounds, I am of opinion that the decision of the Sheriff-Substitute should be affirmed.
The Court dismissed the appeal.
Counsel for Petitioners— J. A. Christie. Agent— William Black, S.S.C.