Scottish Court of Session Decisions

LORD PRESIDENT (Cooper).—By a disposition executed in 1935 by a third party, certain heritable subjects were conveyed to Mr and Mrs Hay "and to the survivor of them and to their or his or her heirs and assignees whomsoever," the narrative of the disposition being that the price of £1750 had been instantly paid to the seller by Mr and Mrs Hay. It is agreed in the case that this narrative is false, the whole of the purchase price having been provided by Mrs Hay. Mrs Hay died in 1944, survived by her husband, and leaving a trust-disposition and settlement whereby she disponed to trustees her whole means and estate "including all means and estate held by me at my death under special destinations." In fact, Mrs Hay held no estate at the time of her death under special destinations other than the heritable property to which I have just referred, and, if she had power by her will to evacuate the special destination, it is agreed that she did so. The disposition was duly recorded in the Register of Sasines under a warrant of registration in common form in favour of Mr and Mrs Hay, and, in the absence of any indication to the contrary, I shall assume that both parties to the transaction were fully aware at the time of all that was done, and that such cases as Cameron's Trustees are therefore not in point.

We are now asked in this special case to say whether the testatrix effectively conveyed to her trustees (a) the whole of the said subjects, or alternatively (b) a one-half pro indivisoshare thereof.

The argument took a curious course owing to a failure clearly to define which half of the subjects was in controversy under the second head of the question. A destination of the type here in question serves a double purpose—first, to vest the heritable subjects in the disponees for certain rights and interests, and, second, to operate as a quasi-testamentary direction, although of course, strictly speaking, a destination in a disposition is not a writing of a testamentary nature at all. Viewing the disposition as a disposition, and keeping in view the terms of the destination and the infeftment that followed, I have at no stage of the argument had any doubt whatever that, on the recording of this disposition in July 1935, Mr Hay became an absolute fee-simple proprietor infeft in a half pro indivisoshare of the subjects, and that nothing that Mrs Hay could thereafter do, whether by inter vivos or mortis causa deed, could possibly affect a subject which was thereafter part of the property of her husband. In so far therefore as we are asked in this case whether Mrs Hay's will had, or could have, the effect of affecting the property of her husband, it seems to me, as learned counsel put it, that the question has only to be asked in order to be answered. She plainly could not.

So much for what I might call Mr Hay's half of the subjects. As regards Mrs Hay's half, the problem arose in the opening speech, unaccountably vanished in the second and third speeches, but was revived under considerable stimulation from the Court in the fourth speech, to which we have heard a reply in a fifth speech. The argument involves a consideration of a tract of familiar cases, beginning with Perrett's Trustees and ending in Brown's Trustee 1943 SC 488 , and I am bound to confess that I view with some uneasiness the progressive development of the law in these cases, because it seems to me that the reasons for the decisions have not always been formulated with as much precision as is to be desired, and that the Courts are stage by stage drifting further and further away from the foundation feudal principles upon which the whole doctrine should rest. If there is an argument in favour of the contention that Mrs Hay was powerless to evacuate the survivorship destination quoad her half of the subjects, that argument must rest upon the view (chiefly associated with Perrett's Trustees), that the transaction by which the subjects were acquired was affected with a contractual element of such a character as to impress upon the survivorship destination something of the quality of a mutual will, which she could not subsequently affect or alter by her general testamentary disposition. Now, if we had nothing before us but the narrative in the disposition, the case would be very near Perrett's Trustees, and the conclusion might be justified that the spouses (and I stress the fact that at the material time they were not

strangers but spouses) had come to a contractual arrangement under which each took the chance of acquiring by survivance the share of the other. But then we have been told in the case that the narrative is false, and the question, which I have not found too easy, is whether we have to carry this tract of law one stage further by admitting extrinsic evidence, not for the purpose of supplementing the information derived from an examination of the documents, but for the purpose of contradicting that information and the inferences which would naturally follow from it. I should welcome an opportunity in a suitable case of having this whole tract of decisions examined by a higher Court. But, taking them as they stand, I am prepared, though with considerable hesitation, to affirm the view that the facts as found in the case are sufficient to exclude a contractual element, and that, since Mrs Hay provided the subjects and in effect donated a half share in them to her husband and retained a half share to herself, she was free by inter vivos or mortis causa deed to evacuate the survivorship destination so far as regards her own half of the property at any time she wished.

The only further observation I would make is that it seems to me unfortunate that the device of a special destination, originally introduced before 1868 for the purpose of overcoming the prohibition which then prevailed against wills of heritage, should still be utilised in circumstances which, as our reports show, are more likely to be productive of litigation than of any compensating advantage to the parties concerned.

I would move your Lordships accordingly to answer the first branch of the question of law in the negative and the second branch in the affirmative.

LORD RUSSELL .—I am in full agreement with the observations which have fallen from your Lordship, and I agree that the question should be answered as proposed.

LORD KEITH .—On the authorities as they stand I have no doubt about the decision of this case, to which I think there can only be one answer. The essential facts are that the wife predeceased the husband and that she was the donor of the property to which the special destination related. It is agreed that, in spite of the narrative in the conveyance, the destination was not contractual. No question arises in the case as to whether the husband could have evacuated the destination to the survivor so as to disappoint his wife of the whole property if she had survived him. It may be that, on the authority of Brown's Trustee, he might be regarded as a person who took the destination sub conditione.It is not necessary to say anything about that matter in this case. I only say that it may be he could not have evacuated the destination to the survivor. But the position of the wife is quite different. She had contributed the funds on which the

conveyance proceeded, and the destination-over to the survivor was, so far as she was concerned, purely testamentary in effect, and she was quite free to evacuate that destination-over by her will. That is what was decided by one part of the decision in Brown's Trustee. Accordingly, so far as her share of the property is concerned, that, by reason of her will, must pass to the beneficiaries thereunder, and the destination-over to the husband of her share has been evacuated. But, as regards the share of the property which the husband obtained when the conveyance was granted, there is no means at all by which she could evacuate that share. The husband was infeft at the date of the recording of the disposition in one-half of the property, and he held that half with all the rights of a pro indiviso proprietor save in so far as he might be barred from evacuating the destination-over in the event of his predeceasing his wife. The question whether the wife could evacuate that share of her husband really answers itself. It was impossible for the wife to evacuate what the husband had already taken, and accordingly, so far as the first branch of the question put to us is concerned, the answer to that must be in the negative.