Scottish Court of Session Decisions

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Cite as: [1921] ScotLR 463, [1921] SLR 463

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SCOTTISH_SLR_Court_of_Session

Page: 463↓

Court of Session Inner House Second Division.

[Sheriff Court at Dumfries.

Friday, May 13. 1921.

58 SLR 463

Reid

v.

Dobie.

Subject_1Succession
Subject_2Fee or Liferent
Subject_3Destination
Subject_4“After him” — Executors (Scotland) Act 1900 (63 and 64 Vict. cap. 55), sec. 3.
Facts:

A testatrix left a holograph will in the following terms, viz.—“All I possess I leave to my husband A, and after him to my sister B.” In a competition between A and B for the office of executor, held that A was entitled to the appointment in respect that under the will he took a full fee, not limited to a liferent.

Headnote:

The Executors (Scotland) Act 1900 (63 and 64 Vict. cap. 55) enacts—Section 3—“Where a testator has not appointed any person to act as his executor, or failing any person so appointed … any general disponee or universal legatory or residuary legatee
Page: 464↓
appointed by such testator, shall be held to be his executor-nominate and entitled to confirmation in that character.”

Mrs Mary Helen Bruce or Reid, widow of Charles William Reid, Lockerbie, pursuer, presented an application in the Sheriff Court at Dumfries for confirmation in her favour as executrix-nominate of her sister the deceased Jeanie Hosea Bruce or Dobie. A similar application was presented by Thomas Dobie, Lockerbie, pursuer, the husband of the deceased Mrs Dobie. These applications were presented in virtue of a holograph will, dated 12th June 1917, in the following terms:—“ Muir head,

Lockerbie, 12/6/17.

All I possess I leave to my husband Thomas Dobie, and after him to my sister Mary Helen Reid, King's Arms Hotel, Lockerbie, and her heirs.

(Sgd.) Jeanie Hosea Dobie.”

The pursuer Mrs Reid maintained that the will conferred a liferent on Thomas Dobie and constituted the pursuer residuary legatee of the deceased subject to the liferent of her husband.

The pursuer Thomas Dobie maintained that under the will he was entitled in fee to the whole of the deceased's estate, and as general disponee was accordingly executor-nominate in terms of the Executors (Scotland) Act 1900 (63 and 64 Vict. cap. 55), sec. 3.

The Sheriff-Substitute ( Campion) conjoined the applications, and on 24th February 1921 repelled the plea-in-law for the pursuer Mrs Reid and refused the crave of her application; further authorised the Clerk of Court to issue confirmation in favour of the pursuer Thomas Dobie as executor-nominate qua general disponee of the late Mrs Dobie in virtue of her holograph will dated 12th June 1917.

Note.—“… I am of opinion that what was intended by the testator was that in the event of the institute her husband not being alive at the time of her death, to her sister as conditional-institute the succession should open. Anyway I am of opinion that is the effect of the will which was executed in June 1917. To sustain the case as contended for by the agent for the pursuer Mrs Reid would practically imply the setting up of a trust, which does not seem to have been contemplated by the testator. The law on this question is very fully considered in the case of Bell's Executor, 24 R. 1120, and the numerous cases' there referred to.”

The pursuer Mrs Reid appealed to the Court of Session, and argued—The words “after him” in the holograph will implied a succession of interests, and therefore inferred a liferent in Thomas Dobie. A substitution in moveables was not to be presumed without express words— Crumpton's Judicial Factor v. Barnardo's Homes, 1917 S.C. 713, and per Lord President Dunedin at p. 719, 54 S.L.R. 596; Bell's Executor v. Borthwick, 1897, 24 R. 1120, 34 S.L.R. 838.

Argued for the respondent—The words “after him” meant “on his death.” To construe the words as a liferent was to invert the order of preference. The testatrix meant her husband to get the capital, and there was no reason why the words should not be construed as a substitution—M'Laren on Wills and Succession, vol. i, p. 575, sec. 1039; O'Reilly v. Baroness Sempill, 1855, 2 Macq 288, per Lord St Leonards, p. 293; Young's Trustees v. Young, 1899, 7 S.L.T. 266, per Lord Kyllachy.

Judgment:

Lord Justice-Clerk—I think there is very little doubt about this case. The testatrix used words which are apposite and habile to convey her property to her husband, and it seems to me that there is no condition limiting his interest to a liferent. I think the husband is full fiar, and that therefore, under the 3rd section of the Executors (Scotland) Act, as general disponee he is entitled to be appointed her executor. Accordingly this appeal fails.

Lord Dundas—I am of the same opinion. This competition between applications for the office of executor must be decided upon a construction of the odd and somewhat obscure words of the holograph will in question. Now the opening words of the will—“All I possess I leave to my husband Thomas Dobie”—by themselves would import a clear gift of fee to the husband, and I cannot read what follows, upon any reasonable construction, as cutting that right down to a mere liferent.

I think it is unnecessary to consider or decide whether Mrs Reid is introduced as a conditional institute, as the Sheriff-Substitute seems to have thought, or, as Mr Henderson argued, a substitute. The husband's application must plainly succeed, and the appeal be refused.

Lord Salvesen—I also think that the Sheriff-Substitute has reached a right result, although as at present advised I am not prepared to concur in his view that this was a conditional institution. My impression is that it was one of substitution, and that the words “after him” are to be read as equivalent to “after his death.” I am quite clear that there is no ground whatever for sustaining the argument upon which this appeal is based—that the husband is to be treated as a mere liferenter and that the fee of the estate passed under the holograph will to the sister who is competing for the office as executor. I find nothing in the two lines of which the will consists to limit to a liferent the fee initially given to the husband.

Lord Ormidale—I concur.

The Court refused the appeal.

Counsel:

Counsel for the Appellant— Guild. Agents— M. J. Brown, Son, & Company, S.S.C.

Counsel for the Respondent— R. C. Henderson. Agents— Inglis, Orr, & Bruce, W.S.
1921