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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Devlin v. Lowrie [1922] ScotLR 209 (21 February 1922)
URL: http://www.bailii.org/scot/cases/ScotCS/1922/59SLR0209.html
Cite as: [1922] SLR 209, [1922] ScotLR 209
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SCOTTISH_SLR_Court_of_Session
Page: 209↓
Court of Session Inner House First Division.
v.
Facts:
A proprietor disponed certain heritable property to his two nieces, A and B, in conjunct fee and liferent for their alimentary liferent use allenarly, and the heirs of the survivor, but with the proviso that in the event of A remarrying, her whole rights and interests in the subjects disponed should then cease and determine, and should thereupon vest in her sister B and her heirs. The question having arisen as to whether A and B were entitled to grant a valid disposition of the property, held that A, B having died before the case was heard, had only a fiduciary fee for her heirs, and that accordingly she was not entitled to grant the disposition in question.
Observed that during their lives the conjunct fiars held not for their respective heirs but for the heirs of the longest liver, and that this involved no extension of the doctrine of fiduciary fee, as
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it was enough if the heirs were heirs in any sense of the person in whom the fiduciary fee was created. Colvile's Trustees v. Marindin, 1908 S.C. 911, 45 S.L.R. 746, referred to.
Alexander White, spirit merchant, 7 Elm Row, Edinburgh, disponed certain heritable subjects at 12 Elm Row, Edinburgh, of which he was heritable proprietor, to his nieces Mrs Isabella White or Devlin and her sister Miss Jane F. E. White, first parties, “in conjunct fee and liferent for their alimentary liferent use allenarly, and the heirs of the survivor; but declaring that in the event of the said Isabella White or Devlin again marrying, her whole rights and interests in the subjects after disponed shall then cease and determine and shall thereupon vest in the said Jane Forsyth Easton White and her heirs as if the said Isabella White or Devlin had predeceased the said Jane Forsyth Easton White.”
The first parties having entered into missives of sale of the said subjects with James Lowrie, tailor, 12 Elm Row, Edinburgh, second party, a Special Case was presented to ascertain whether the first parties had a title to grant a valid dispositien of the subjects to the second party. Miss Jane F. E. White, one of the first parties, died unmarried on 19th January 1922 before the case was heard, leaving a will whereby she appointed Mrs Devlin to be her sole executrix and universal legatee. The case having been amended to meet the altered circumstances occasioned by the death of Miss White, set forth, inter alia—“3. In implement of the said missives of sale the first party and Miss White offered a disposition of the said subjects, and their whole right, title, and interest therein, to the second party, and the first party, who through the death of Miss White is now in right of any interest in said subjects which Miss White had a title to convey to the second party, is willing to give to the second party a disposition of said subjects and of her whole right, title, and interest therein, and the second party is willing to accept the said disposition and to pay the agreed-on price in the event of it being found by the Court that the first party has a valid title as heritable proprietor of the said subjects.”
The question of law, as amended, for the opinion and judgment of the Court was—“Is the first party heritable proprietor of the said subjects, and as such entitled to grant a valid disposition thereof to the second party?”
Argued for the first party—The clause in the disposition quoted in the case conferred a conjunct fee on the first party and her sister, although the words subsequently added might have been intended to qualify the right given to each of the conjunct fiars in favour of the survivor of them. The words “heirs of the survivor” fell to be construed as “the survivor and her heirs,” being the usual interpretation. Probably the disponer made an ineffectual attempt to bestow on the surviving niece a liferent “allenarly” over the half of the property given in fee to the predeceasing niece. In view of the whole terms of the clause the expression “liferent allenarly” was not sufficient to cut the conjunct fee down to a liferent allenarly which would have the effect of leaving the fee in pendente. Alternatively there was in Mrs Devlin and Miss White a fiduciary fee during their lives, and thereafter in the survivor, for the benefit of the heirs of the longest liver. Each would have the fee in a half of the property but would be unable to dispose of it so as to defeat the heirs of the survivor. Such a suggested fiduciary fee, however, would extend the doctrine of a fiduciary fee beyond its limits as indicated by the decisions. Where as here there was a gift of fee the later words restricting the gift to a liferent must be disregarded as repugnant. The clause conferring the fee upon the two nieces was the only part of the disposition which was effectual. The following authorities were referred to—Craigie, Heritable Rights, 3rd ed., pp. 564, 566, examples numbers 31, 32, and 40; Juridical Styles, 5th ed., vol. i, p. 112; Bryson v. Munro's Trustees, 1893, 20 R. 986, 30 S.L.R. 903; Watherstone v. Bentons, 1801, M. 4297; Newlands v. Newlands' Creditors, 1794, M. 4289; Wilson v. Reid, 1827, 6 S. 198; Burrowee v. M'Farquhar's Trustees, 1842, 4 D. 1484; Cumstie v. Cumstie's Trustees, 1876, 3 R. 921, per Lord Ardmillan at pp. 924, 926 et seq., and Lord Deas at pp. 935, 936, 13 S.L.R. 594; Allen v. Flint, 1886, 13 R. 975, per Lord President Inglis at p. 978, 23 S.L.R. 703; Logan's Trustees v. Ellis, 1890, 17 R. 425, per Lord Adam at p. 432, and Lord Shand at p. 434, 27 S.L.R. 322; Tristram v. M'Haffles, 1894, 22 R. 121, per Lord M'Laren at p. 125, 32 S.L.R. 114; Walker v. Galbraith, 1895, 23 R. 347, 33 S.L.R. 246; Forsyth v. Forsyth, 1901, 3 F. 929, 38 S.L.R. 668; Tweeddale's Trustees v. Tweeddale, 1905, 8 F. 264, 43 S.L.R. 193; Colvile's Trustees v. Marindin, 1908 S.C. 911, per Lord President Dunedin at p. 919, 45 S.L.R. 746; Crumpton's J. F. v. Barnardo's Homes, 1917 S.C. 713, 54 S.L.R. 596; Veitch's Trustees v. Rutherford, 1914 S.C. 182, 51 S.L.R. 150. [ Lord Ashmore referred to Rollo v. Ramsay, 1832, 11 S. 132, as following the case of Watherstone, cit.]
Argued for the second party—The clause in question in the present case resembled those in Watherstone, cit., Bryson, cit., and Rollo, cit., very closely, in which cases a fiduciary fee was held to have been created. The disponer here intended to give his nieces the liferent of the property and the fee to their heirs. One could not by inference increase a liferent to a fee which unless effectively disponed would fall into intestacy. The words “conjunct fee” and “liferent” always fell to be interpreted in the light of the surrounding circumstances. Counsel cited the following additional authorities—Craigie, Heritable Rights, 3rd ed., p. 571, example numbers 13 and 14; Cumstie, cit., per Lord President Inglis at p. 942; Brough v. Adamson, 1887, 14 R. 858, 24 S.L.R. 616.
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The destination being neither to husband and wife nor to parent and child must be regarded for purposes of construction as a destination to strangers, and its interpretation will accordingly be unaffected by any of those special considerations which influence the determination of the rights of parties under destinations to husband and wife and to parent and child. No one can read the destination without seeing that the general object in view was to make provision—I purposely use neutral words—for these two ladies, both while they survived together and after one of them was left alone, and that the idea was that the ultimate benefit was intended for the heirs of the survivor. I say so much as to the general scheme of the destination, because I think that it throws clear light on the meaning of the declaration, which might otherwise be thought to raise some ambiguity. The declaration in my opinion means nothing else than this, that if during the joint lives of the two ladies Mrs Devlin married again, then all her rights during her life and the prospective interests of her heirs (whatever those rights and interests might be) were immediately to devolve upon her sister Miss White and her heirs. If that be correct—and I feel sure the declaration cannot be reasonably otherwise read—then we are free to approach the difficulties presented by the terms of the destination without embarrassment derived from ambiguities imported into it from the declaration.
If the construction of the destination had been less illuminated by authority than it actually is, the difficulties in construing a clause which it is possible to suggest has been bungled would be greater than they are. In point of fact, however, the form of destination which occurred in the old case of Watherstone v. Rentons ( M. 4297), and that which was under construction in the case of Rollo v. Ramsay ( 11 S. 132), to which Lord Ashmore referred in the course of the discussion, resemble in the closest manner the destination which this disposition reproduces. It is, of course, important to remember that in both those cases the destination was to husband and wife, with ultimate benefit to the children of the marriage, and I shall have a word to say in a moment as to the propriety of applying the same principle of construction as was followed in those cases to a destination to strangers. But the similarity of the clauses is very marked, and in both of them the explanation of the words “conjunct fee” was found to lie-in attributing their introduction into the deed, not to an intention to confer an actual fee (so creating a repugnancy with the “liferent allenarly”), but to a desire to confer in express terms that formal or fiduciary right of fee which in accordance with the decision in the case of Newlands v. Newlands' Creditors ( M. 4289) would have been conferred at anyrate by implication of law. In the case of Watherstone the construction which was given to the words “conjunct fee” was precisely to insert exegetically after these words, and between them and the words conferring a liferent allenarly, the adverb fiduciarie, and I see that in Rollo v. Ramsay the Lord Ordinary expressed himself by saying that he thought the best way was to take the words—which were “in conjunct fee and liferent, for the liferent use allenarly of the longest liver and to the children of the marriage in fee”—literally, thus holding them to vest in the husband and wife a fiduciary fee for the liferent use of the survivor and for the children in fee. In this case, the destination being to strangers and the ultimate destination being to the heirs of the survivor, one has to meet the difficulty created by any possible extension, even if it be of the narrowest dimensions, of the doctrine of Newlands, which admitted fiduciary fees in the case of children but did not apply them to the case of heirs. But I see no reason at all why the principle of Watherstone and of Rollo should not be applied to the present case if the doctrine of fiduciary fees is legitimately applicable to the case of heirs as well as to that of children. Now since the decision in the case of Cumstie ( 3 R. 921) there can be no doubt that the doctrine of fiduciary fees is so applicable. In the present case therefore the first party, Mrs Devlin, the survivor of the two nieces, is the fiduciary fiar on behalf of her own heirs, and there seems accordingly to be no difficulty in giving effect in this case to the doctrine which was applied in the two cases to which I have referred, although these were cases of destinations to husband and wife. It was pointed out very properly by Mr Duffes that a question might have been raised during Miss White's life as to whether a possible extension of the doctrine of fiduciary fee might not have been involved in applying it to the state of affairs which existed while both sisters survived, because in that state of affairs the two conjunct fiars held not for their respective heirs but for the heirs of that one of the two who might ultimately turn out to be survivor. I doubt if any extension of the doctrine would have been involved in so applying it, for, as Lord President Dunedin indicated in the case of Colvile's Trustees ( 1908 S.C. 911, at p. 919), it is enough if the heirs are “heirs in any
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My opinion is accordingly that Mrs Devlin, the first party, is not entitled as fiduciary fiar to grant a valid disposition thereof to the second party. Whether she will find any difficulty in getting the necessary power if she applies for it is another matter.
The Court answered the question in the negative,
Counsel for the First Party— Duffes. Agent— Peter Clark, S.S.C.
Counsel for the Second Party— Macgregor Mitchell. Agents— J. & R. A. Robertson, W.S.