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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Pattison v. Henderson and others. (3 Macph. 779; 4 Macph, 1104.) [1868] UKHL 726 (23 July 1868)
URL: http://www.bailii.org/uk/cases/UKHL/1868/05SLR0726.html
Cite as: 5 ScotLR 726, [1868] UKHL 726
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SCOTTISH_SLR_House_of_Lords
Page: 726↓
House of Lords.
v.
v.
Subject_Succession — Substitution — Title to Sue — Deathbed — Consolidation — Superiority — Dominium utile.
Facts:
W. D. disponed his whole estates to his brother A. D. “and his heirs and assigns whomsover.” declaring, without prejudice to the powers of A. D., that if A. D. died intestate and without heirs of his body, and without otherwise disposing of the estates, the same should devolve upon certain parties named. To one of those parties, A. D. P., there was destined the superiority of B. After the date of this disposition, W. D. purchased and was inf eft in the dominium utile of B., but did not consolidate. A. D. survived his brother, and made up titles to his estates as heir-at-law, and consolidated the superiority and property of B. by resignation ad remanentiam. He died without issue, leaving a trust-disposition executed on deathbed. Held (1) that the heir-at-law of A. D. had no title to sue a reduction of the deed of A. D., so far as regards the lands acquired by A. D. by succession from his brother,—except in so far as the deed conveyed the plenum dominium of B., but only to the effect of vindicating a claim to the dominium utile,—in respect that W. D.'s deed contained a valid substitution whereby the heir-at-law of A. IX was excluded. (2) That A. D. P. had a title to sue a reduction of the deathbed deed of A. D., as a conveyance of the plenum dominium of B., to the effect of enabling him to vindicate his claim as an heir of provision to the superiority of B. under the settlement of W. D.
In one of the actions included in this appeal, the curator bonis of William Park, heir-at-law of Alexander Dunn of Duntocher, sought to reduce ex capite lecti a disposition by Alexander Dunn of certain heritable property, part of which he himself purchased, and to part of which he succeeded from his brother William. The Court of Session, on 27th March 1865, sustained the title to reduce so far as regarded the lands which had belonged to Alexander Dunn, but, in so far as regarded the
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lands derived from William Dunn, they held that the heir-at-law of Alexander had no title to sue, in respect that William's deed contained a valid substitution excluding him, and that the conditions on which that substitution was contingent had been purified. In another action of reduction of Alexander Dunn's deed, at the instance of Alexander Dunn Pattison, one of the heirs of provision under the deed of William Dunn, the Court sustained the title of the pursuer, to the effect of enabling him to vindicate his right to the superiority of the lands of Boquanran, but repelled his claim to the property of these lands. These appeals were now presented.
Moncreiff D.-F., Sir R. Palmer, and Anderson, Q.C., for Barstow.
Young and Pearson, Q.C., for Pattison.
The Lord Advocate, Mellish, Q.C., and Jas. T. Anderson, for Black.
Druse, Q.C., and Boyd Kinnear for Boyd and Others.
At advising—
Lord Chancellor—My Lords, the first of the appeals now to be considered by your Lordships has arisen out of an action commenced in the Court of Session in 1862 by the Curator bonis of William Park, a lunatic. William Park is heir-at-law of Alexander Dunn, and the object of the action is to reduce ex capiti lecti a disposition made by Alexander Dunn of heritable property, some part of which he had himself acquired, and to the other part of which he had succeeded under a disposition made by his brother William Dunn. It is with the property derived by Alexander Dunn under the disposition of William Dunn that this appeal is concerned.
That the deed executed by Alexander Dunn with reference to this property was a deathbed deed, according to the law of Scotland on the subject, was not denied by the defenders in the action. But the defenders contended that, by the law of Scotland, the heir cannot reduce a deed ex capiti lecti unless he can show himself damnified by it—that is to say, unless he can show that if the deathbed deed were reduced, he, the heir, would take the property. And it was insisted for the defenders that if Alexander Dunn's deed had not been executed, or were to be set aside, the heir of Alexander Dunn would not take the property, but that it would go over, under the deed of William Dunn, to other parties. The heir of Alexander Dunn, on the other hand, contended that this disposition or limitation over in the deed of William Dunn was inoperative, and that the first or ruling disposition in the deed of William Dunn—to “Alexander Dunn, his heirs and assignees whomsoever,”—remains undisturbed, and gives the heir of Alexander a right to reduce the deathbed deed.
The Lord Ordinary, by his interlocutor of the 10th January 1865, decided in favour of the right of the heir of Alexander Dunn (the appellant in the first appeal) to reduce. This interlocutor was recalled by the Lords of the Second Division in their interlocutor of the 27th of March 1865, their Lordships sustaining the objections to the title of the heir of Alexander to sue for a reduction of the deed quoad the estate of William Dunn, and it is against this interlocutor that the heir of Alexander Dunn now appeals to your Lordships.
Your Lordships have therefore to determine the construction and operation of the deed of William Dunn. It is dated the 17th of April 1830, and is a disposition and deed of settlement, not by way of trust, but operating as a de presenti feudal conveyance.
I will read shortly the first words of disposition,—“I, William Dunn, … have given, granted and disponed, as I hereby do give, grant, dispone, alienate, convey, and make over from me after my death to and in favour of Alexander Dunn, and his heirs and assignees whomsoever, all and sundry lands, &c. … with and under the burdens and conditions following.” Then follow provisions as to various legacies and annuities, and an appointment of Alexander Dunn as executor.
The deed, after the nomination of the executors, proceeds thus:—“Declaring as it is hereby specially provided and declared, but without prejudice in any respect to, or limitation of the rights and powers of the said Alexander Dunn, under and by virtue of the conveyance in his favour before written, to exercise the most full and absolute control in the disposal of the said estates and effects, either during his lifetime, or by settlements or other writings to take effect at his death; that in the event of his dying intestate and without leaving heirs of his body, and of his not otherwise disposing of the subjects and estates hereby conveyed to him, the same shall fall and devolve, and accordingly I do hereby in these events, but under the burdens and provisions before written, dispone, alienate and convey my said subjects and estates, heritable and moveable, to the persons and in the terms after-mentioned.” Then follows a specification of the persons to whom and among whom the property was to go over and be divided in the events thus described, among whom are the respondents or some of them.
In the argument at your Lordships' bar it was strenuously contended on behalf of the respondents that, by reason of the form of the limitation or substitution which I have just read, the words of the leading disposition at the commencement of the deed must be modified, and that the disposition to “Alexander Dunn, his heirs and assignees whomsoever,” must be read as a disposition to Alexander Dunn and the heir3 of his body. The deed, it was argued, would thus run aptly and consistently as a disposition to Alexander Dunn and the heirs of his body, with a regular and proper substitution on the termination of Alexander Dunn's estate tail by failure of heirs of his body at his death.
My Lords, I find myself, after a careful consideration of the arguments in support of it, wholly unable to adopt this construction. In the first place, the words “heirs and assignees whomsoever,” appear to me to be words which would naturally be used, not as the equivalent of, but in contradistinction to the words “heirs of the body,” and in this sense, as the Lord Justice-Clerk says, they have in Scotch conveyancing a technical meaning which never varies. In the next place, even after doing violence to the words “heirs and assignees whomsoever” by reducing them to the meaning of “heirs of the body,” we should not, after all, have reconciled the first disposition with the limitation over or substitution, inasmuch as this substitution is to take effect not on failure of heirs of the body generally, but only in the event of Alexander Dunn not “leaving” heirs of his body—that is, as was admitted, leaving heirs of his body at his death. But further than this—even assuming that a general disposition to A. and his heirs, followed by a limitation over if A. die without heirs of his body, might be moulded into a disposition to A.
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Rejecting therefore, as I am compelled to advise your Lordships to do, this construction, I have next to inquire whether there is anything to prevent the disposition taking effect according to the natural meaning of the words used in the deed. No person reading over this deed could, in my opinion, entertain any doubt that what William Dunn meant was, that his brother Alexander should be to all intents and purposes absolute fiar and owner of the estates, with absolute powers of disposition over the estates; but that if Alexander should not dispose of the estates, and should die childless, the estates should go over. This limitation over is one which, in my opinion, would in an English deed or will be invalid, because by English law you cannot, generally speaking, make a man absolute owner of an estate and at the same time make a gift or limitation over of the estate dependent on the absolute owner not exercising his rights of ownership by disposition. The position of an unlimited fiar with a conditional gift over is unknown to the English law. But the position of an unlimited fiar, that is a fiar with unlimited power of ownership and disposition, followed by substitutions or limitations over, is well-known to the Scotch law. It would, in my opinion, have been a perfectly good disposition to have settled these estates on Alexander Dunn, his heirs and assigns, with a limitation over to other persons in the event of Alexander Dunn dying childless. Under such a settlement Alexander Dunn would have had an absolute power of disposition over the estates. And, in my opinion, the words of apparent contingency—“in the event of his not disposing of the estates”—are no more than a recognition of that power of disposition which was, by Scotch law, inherent in the estate given to Alexander Dunn.
I therefore propose to move your Lordships that the interlocutor of the 27th March 1865, pronounced in the first action, should, with one variation which I shall afterwards mention, be affirmed, and the appeal of Barstow in that action dismissed with costs.
In the second action, and in the appeals arising out of it, another question has arisen in this way. The disposition over in William Dunn's settlement professed to carry to Mr Dunn Pattison, as the eldest son of Janet Pattison, the superiority of Boquhanran. William Dunn after the date of this settlement acquired the dominium utile in Boquhanran, and this dominium utile passing to Alexander Dunn, he (Alexander Dunn) completed his title to it in 1852, and by proper instruments and conveyances effected a consolidation of the dominium utile with the dominium directum, which at that time belonged to him under the leading disposition in William Dunn's deed. Mr Dunn Pattison contends that this consolidation has enured to his benefit, and that he is now entitled, not to the superiority of Boquhanran merely, which is mentioned in the deed, but to the plenum dominium of Boquhanran; or, in other words, to the superiority plus the dominium utile. That the destination of the dominium utile to the residuary legatees in the settlement of William Dunn was evacuated by the acts of Alexander Dunn I have no doubt; but the argument that Mr Dunn Pattison can benefit by this evacuation, I feel compelled, after much hesitation, to reject. I think the conclusion of the majority of the learned judges in the Court of Session was, on this question also, correct, and that Mr Dunn Pattison was never intended by Alexander Dunn to have more, and that he cannot claim more, than what the deed of William Dunn gives him, namely, the superiority of Boquhanran without the dominium utile, which dominium utile must be severed from the dominium directum for the benefit of Alexander Dunn's heir-at-law. The reasons which lead me to this conclusion are those given by Lord Cowan and the Lord Justice-Clerk, which I do not think it necessary to repeat.
This limited right of Alexander Dunn's heir-at-law as to the dominium utile of Boquhanran was, as it seems to me, either overlooked by or not sufficiently pressed upon the Court when the interlocutor of the 27th of March 1865, in the first action, was made, and a variation must now be made in that interlocutor in order to sustain the right of the heir of Alexander Dunn to reduce the deathbed deed quoad the dominium utile of Boquhanran. Had the appeal in the first action by the heir been directed merely or mainly to obtain this variation, I should have thought that no costs could be given against the heir; but as he raised in that appeal the much broader and larger question on which he has failed, I think the first appeal should be dismissed with costs.
In the second action I propose to move your Lordships that, inasmuch as both the appeal and the three cross appeals have failed, if you concur in the opinion I have expressed, they should all be dismissed with costs.
My Lords, the variation in the interlocutor which I should humbly offer as the proper one to be made, would run thus:—Declare that the pur-. suer, as curator for the heir-at-law of Alexander Dunn, has good title to sue for reduction of the trast-disposition of the said Alexander Dunn, in so far as it conveys the plenum dominium of the lands of Boquhanran, but only to the effect of enabling the said curator to vindicate the claim of the said heir-at-law, as such, to the dominium utile of the said lands, subject to such feu-duty or other rights as would have been exigible by, or have belonged to, the owner of the dominium directum if there had been no consolidation by Alexander Dunn; and remit to the Court of Session with this declaration to proceed in accordance therewith. Subject to this declaration and remit, I shall move your Lordships to affirm the interlocutor appealed from and dismiss, as I have said, the appeal with costs.
My Lords, I have reason to know that those of your Lordships who have heard this appeal, and are present, concur in a great measure with the conclusions at which I have arrived. But I have had a communication from my noble and learned friend Lord Cranworth, who is prevented by indisposition from attending the House to-day, in which it is proper that I should tell your Lordships that he states, that in the first appeal he concurs in the opinion which I have expressed, though he has had doubts upon it; but in the second he is unable to concur. He thinks that when Alexander Dunn had become absolute owner, both of the superiority and of the dominium utile, he caused them ever afterwards to go together, and the ownership of the property must go with the superiority,
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The first question relates to the validity of the conditional substitution contained in the deed of William Dunn. There has been much argument at the bar on matters which I have always thought were well settled in Scotch jurisprudence. If a destination be made to A., his heirs and assignees whatsoever, there is no room for further disposition, because the whole property and right of ownership are comprised in and exhausted by the first disposition, which, in the hypothesis of law, will never come to an end. In such a case nothing remains to form the subject of ulterior ownership. But a complete disposition of this nature may be followed by a conditional substitution, that is, by a new disposition or gift depending on a contingent event, the declared effect of which, should it occur, is to reduce or put an end to the anterior disposition, and give birth to a new or substitutionary gift. The condition when purified, puts an end to the first disposition, and introduces the second.
This is the proper province of a conditional substitution. In the English law of real property it is called a conditional limitation. But there is this important difference between the two systems: By the English law the grantee in fee subject to a shifting use or conditional limitation cannot defeat the limitation, or prevent its taking effect; but in Scotland the first disponee is absolute fiar, and unless fettered, may, by alienation inter vivos or settlement mortis causâ, make an absolute conveyance of the estate.
Various examples may be given of conditional substitutions. If lands at X. are disponed to A., his heirs and asignees whatsoever, subject to a proviso that if the lands of Y. shall descend to A. then the lands at X. shall go and be disponed to B. and his heirs, the descent of the lands of Y. is a contingency which, when it occurs, operates by way of condition to defeat the disposition to A. and his heirs, and gives rise to the ulterior disposition to B. and his heirs, which is therefore properly called a conditional substitution; so, if the condition be that if A., to whom lands are disponed in fee, shall die without leaving issue living at his death, the lands shall go and be disponed to B. and his heirs, the gift to B. is a conditional substitution, and whether it takes effect or not will be ascertained at the death of A. But if the disposition be to A., his heirs and assignees whomsoever, and on his dying without issue, then to B. and his heirs (an event which may not happen for several generations), the better construction would seem to be that the disposition to A., his heirs and assignees whatsoever, shall be read as if it had been to A. and the heirs of his body, whom failing, to B. and his heirs; and thus the gift to B. becomes a simple and not a conditional substitution. In the nomenclature of English law the gift to B. and his heirs in the case supposed would be a remainder and not a conditional limitation—the difference being that a remainder expects and awaits the termination of the antecedent particular estate, whereas a conditional limitation defeats and puts an end to it. Therefore in English law there can be no remainder limited after an estate in fee simple, for nothing remains to be given; but as I have already observed, an estate in fee simple may be followed by a conditional limitation. This is mere illustration and affords no ground for conclusion in a matter of Scotch law; but there is no reason, and certainly no authority that I am aware of in Scotland, for holding that a destination to A., his heirs and assignees whatsoever, may not be followed by a conditional substitution.
The next question is, What, according to the true construction of William Dunn's deed, is the condition on which the gift over depends?
In the Court below it seems to have been considered that this condition involved several contingent events-—one, the event of Alexander Dunn making no alienation in his lifetime, and another, his dying intestate. But I am not of opinion that these events form any part of the condition on which the substitution over is made to depend. I consider the words that refer to these events as not expressive of any conditions, but as amounting only to a declaration ex majore cautelâ, that the disposition over, in the event of Alexander Dunn dying without leaving issue, should not prejudice or detract from the right of alienation which Alexander Dunn as fiar would possess either by disposition inter vivos, or by a settlement mortis causâ. The disposition to Alexander Dunn and his heirs made him absolute fiar, and gave him the right of alienation. This right is by law incident to the estate which is given. When, therefore, the deed says that the conditional substitution shall take effect if Alexander Dunn shall not make any alienation by deed or gift by will, these words are simply expressio eorum quœ tacite insunt, and say nothing more than what the law says without them. If I dispone to A. and the heirs of his body, whom failing to B. and the heirs of his body, the gift to B. is at the mercy of A., and depends on the event of A. making no alienation. If I added to the words “whom failing” these words, “and in the event of A.'s dying intestate, and of his not otherwise disposing of the estate,” they would be words of superfluity, as expressing what the law implies, and would operate nothing.
It is not correct to say that this construction takes away all operation from the disposition to “heirs whomsoever,” or renders the limitation to heirs one which never can have effect, for if Alexander Dunn leaves issue at his death the conditional substitution flies off, and the disposition to Alexander Dunn and his heirs is left in full force and integrity.
Some misuse was here made of English law. In England you cannot make a gift over dependent on a condition which is repugnant to the estate first given. Neither can you prohibit the first taker from doing something which it is incidental to his estate that he should be able to do, and take away the estate from him on his breach of the prohibition. Nothing of the kind occurs here. The law attaches to the disposition in favour of Alexander Dunn and his heirs the right of alienation inter vivos or mortis causâ, and the words of the gift over,—if Alexander Dunn shall not have exercised this right of alienation, thereby remaining fiar of the estate, and shall die leaving no issue—are not at variance with or derogatory from the prior estate, but simply in affirmance of what the law has already said.
It is asked, if I dispose to A. and his heirs, making him absolute fiar, can I make an ulterior disposition to B. and his heirs, on the event of A. not making any alienation? I am not prepared to
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This construction supersedes the question much argued at the bar, whether the settlement of Alexander Dunn is not to be regarded as made by virtue of a specially reserved faculty, and therefore irreducible by means of the law of death-bed. There is not, in my opinion, any special faculty, but a mere reference to the ordinary jus disponendi which belongs to every fiar. Therefore, as the event happened which constitutes the condition, namely, the death of Alexander without leaving any issue, I am of opinion that the substitution took effect, and that the heir of provision entitled by virtue of that substitution has a right to reduce the settlement of Alexander Dunn on the ground of its having been made in lecto.
The rights of all parties entitled under the settlement of William Dunn are personal only, that is to say, they are equitable rights, collateral to the feudal estate or title. The deed of William Dunn does not contain in gremio any power of feudalising the estates which are given.
The argument has been that, by virtue of certain feudal conveyances, Alexander Dunn has evacuated the conditional substitution, for that having by virtue of such feudal acts acquired a new estate, the personal right under the settlement is defeated, and no longer attaches on the feodum novum. This appears to me to be wholly unfounded, both in reason and in law. If the party who has a pure personal right under a settlement as disponee, subject to substitution, proceed extra the settlement to acquire a complete feudal title, the right of the heir under the disposition of the personal right attaches as a trust or obligation upon the complete feudal estate. Without, therefore, examining the merits of the argument on the effect of the resignation, but assuming the feudal conveyances to have had the operation of giving a new feudal estate, I am of opinion that this does not affect the validity of the personal right.
It remains to examine another ingenious argument pressed by the counsel for the appellant Mr Pattison. It was contended that the effect of the procuratory of resignation was to unite and blend the dominium utile with the dominium directum, so that the former was merged and lost by its union with the latter; and that Mr Pattison, claiming under the deed of William Dunn, as conditional substitute of the dominium directum of the lands of Boquhauran, was now entitled to receive them under that gift free from the dominium utile.—In other words, that he was entitled under the gift to him of the dominium directum to receive the plenum dominium or absolute ownership of the lands.
I apprehend that this argument is wholly unfounded. Assuming that the effect of the resignation was to merge and extinguish the dominium utile, the person who is the owner of the feudal plenum dominium by virtue of that Act, subject to the personal right given by the conditional substitution in favour of Mr Pattison, may by proper conveyances sever the dominium utile again from the dominium directum, so as to be in a condition to grant to Mr Pattison that which alone is given to him, namely, the dominium directum in the lands of Boquhanran. If this can be made good to him, as it clearly may, he gets the benefit of the gift contained in the deed of William Dunn, and is entitled to no more. The case is very different from one in which two things have been wrongfully blended together so as not to admit of separation.
These few plain remarks dispose of the different questions which were discussed at the bar, and the result is that, in my opinion, the contention of the heir-at-law fails except as to the dominium utile of the lands of Boquhauran; but which ought not, under the circumstances, to save his being directed to pay the costs of his extended appeal; and that the contention of Mr Pattison touching the right to the dominium utile also fails; and that his appeal ought, as to that, to be dismissed with costs; and that the interlocutor of the Inner House is correct, and must be affirmed, but with the accompanying declaration which has been already stated by my noble and learned friend on the Woolsack; and that, accordingly, the causes should be remitted to the Court below to do that which may be necessary to give effect to that declaration.
Now, in this case the Court have held that the heir of Alexander Dunn, or his curator, has no title to sue reduction of Alexander Dunn's deed in so far as regards certain properties, but that he has a title to sue reduction of that deed in so far as regards other properties, namely, those that belonged to Alexander Dunn himself. And the reason why they have found that he is not entitled to sue a reduction in regard to the property that belonged to William Dunn is, that William Dunn himself had by a valid deed given that property by substitution to parties who would be entitled to take the property if the deed of Alexander Dunn were set aside. Alexander Dunn's deed had been made, as regards the property which he had succeeded
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Was the Court right in holding that the heir of Alexander Dunn had no title to sue that reduction so far as regards the property which had been derived from William Dunn? I think it was, except as regards the dominium utile. The argument that was submitted to us in regard to that matter was put with great ability and great ingenuity, and the ingenuity which was involved in it, and the admixture which was introduced of English principles, made me think it proper to put down upon paper what were my own views as regarded the simple case before us, judged by the law of Scotland. The view I took of that case with regard to the first appeal was this:—
The deed of the 17th of April 1830 is a mortis cuusâ deed—the testamentary settlement of William Dunn, whereby he declared his intentions as to the succession to every part of his estate, heritable and moveable. As parts of his estate consisted of heritage, it was necessary that the deed should contain words of disposition—and the deed in question has such words. In considering what effect is to be given to such a deed, it is necessary to read the whole deed, and to collect from it the intentions of the testator, and, if those intentions are clearly evinced, to give effect to them, unless there be some legal or formal obstacle to doing so.
As to the intention of William Dunn, I think it is impossible to entertain a doubt, for he has stated it in express terms in a clause obviously constructed for the purpose of giving full expression to his intentions, and of giving full effect to them. I do not think that the intention has been seriously questioned by any one either in the Court below or at the bar of this House. He intended that, in the event of his brother Alexander surviving him and dying childless, without having disposed of the estates, they were then to go in certain portions to certain relatives named. That destination of his heritable estates is set forth by him with great particularity. The detail in which the different families, including Alexander's heir-at-law, are substituted in separate portions of the estate, excludes all room for doubt as to the settled purpose of the testator. The event of Alexander having died childless and without having disposed of the estates has happened, and the question is, whether effect is to be given or to be denied to William's declared purpose?
Setting aside for a moment the argument founded on the words “heirs and assignees whomsoever,” which occur in the early part of the dispositive clause of the deed, and looking merely to the thing itself that William contemplated, it was a thing not only within his competency to do, and perfectly consistent with the principles of Scotch conveyancing, but it was the thing that is done in effect, though less fully expressed, in almost every case of substitutions in heritage to a man and the heirs of his body, not fenced with what are called fettering clauses. In every such case the first disponee or institute is unlimited fiar. He may contract debt on the estate, or he may dispose of it for onerous causes, or gratuitously by deed inter vivos or mortis causâ; but if he does none of these things, and leaves no heir of his body, the substitute first named will succeed to him and will have the same power of disposal. It seems unnecessary to cite authority for a proposition now so elementary. It was, therefore, quite within the legal competency of William Dunn to settle his heritage so that it should go first to his brother Alexander, who should be fiar, with unlimited power of disposal, and that in the event of Alexander dying childless, and without having disposed of the estate by deed either inter vivos or mortis causâ, it should go to certain parties pointed out as substituted in that event. It is also clear that this was what William Dunn intended and endeavoured to do, and that the declaration or conditional substitution upon which so much depends, was introduced expressly for that purpose.
The question is therefore reduced to this—whether the words “heirs and assignees whomsoever,” in the early part of the dispositive clause, make it impossible to give effect to the intention of the testator, fully and unmistakeably expressed in the subsequent part.
The Lord Ordinary does not appear to have had any doubt as to what William Dunn intended, but his Lordship appears to have thought “the mode” adopted ineffectual; and he says “it rather appears to him” that the deed of William Dunn amounts to an attempt to do something that could not be competently done. That was also the contention of the appellants. If by that is meant that William could not effectually give the estate to Alexander and his heir and assigns whomsoever, and at the same time not give it to them, that would be little else than a truism, and would not advance the argument. It is obvious, however, that William Dunn did not intend or attempt to do that. If the meaning be, that the words used in the first part of the dispositive clause—viz., “heirs and assignees whomsoever,” taken by themselves, are inconsistent with the destination contained in the subsequent part, then, supposing that to be so, it would not necessarily, or by sound legal inference, or the rules of construction applicable to such deeds, lead to a rejection of the latter, containing, as it does, the fullest and latest declaration of his purpose. On the contrary, the latter ought to prevail if there be an apparent conflict.
It is a mistake to suppose that, because the deed begins with words of disposition to Alexander and his heirs and assigns whomsoever, the testator deprived himself of the power of attaching conditions to the destination to heirs whomsoever, or of qualifying, or explaining, or restricting, or altering by subsequent words, the effect that would have been due to those previous words if they had been allowed to stand without any such condition, qualification, or explanation. The whole matter was still within his power, and his whole purpose had not been finally declared. What, then, does he go on to do? He expressly declares his meaning and purpose to be, that while he does not mean or intend to restrict the absolute power of disposal given to Alexander, he does mean and intend that there shall be a substitution of certain parties conditionally on—that is in the event of—Alexander dying intestate without issue. Notwithstanding the substitution thus made, Alexander, as in other cases of substitution, was unlimited fiar, and his gratuitous mortis causa deed, disposing of and distributing the estates, could not have been challenged by any one apart from the ground of deathbed.
No particular form of words was necessary for effectuating the purpose intended, but the clause is very anxiously expressed. It combines almost every form of expression that could he suggested for giving effect to the purpose—“fall and devolve,
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All the judges of the Second Division were of opinion that there was here a perfectly habile exposition by William Dunn of the true meaning and import of his deed, and that there was no obstacle in form or substance to giving effect to it. One of them, Lord Benholme, thought that the word “heirs” should be read as heirs of the body, but said he did not consider that necessary for the decision of the case, plainly indicating his concurrence in the view taken by all the other judges as being sufficient for the decision of the case. Other judges hesitated or declined to hold that the word “heirs” was to be construed as “heirs of the body,” with reference to every combination of circumstances that might have occurred, although in the case that did occur the result, or at least the primary result, was practically the same. The Lord Justice-Clerk, in particular, thought that the words “heirs and assignees whomsoever” had such a fixed meaning that he could not simply read them as “heirs of the body,” but he did not doubt that the testator could qualify the earlier part of the dispositive clause so expressed by a subsequent part, or that such qualification should receive effect, giving as it did, in apt language, full and clear expression to the testator's purpose as to the destination of his heritable estates.
While I concur with the Lord Justice-Clerk in holding as a general proposition, that the words “heirs and assignees whomsoever” have a known meaning, which is not the same as heirs of the body, and which is so far a fixed meaning that it cannot easily be wrested from them, I am not disposed to go the length of holding that these words may not admit of construction. But, I concur with him and all the judges of the Second Division in thinking that it was competent for the granter of the deed, after having used these words, still to attach conditions as to the succession of the heirs whomsoever, or to qualify and explain his disposition and settlement by subsequent words and provisions, and that he has effectually done so.
I therefore think that the judgment of the Court below, in this case, is substantially right. But there is a point in the case which appears not to have been adverted to when the case was under the consideration of the Court, and with reference to which it may be necessary that some alteration should be made on the terms of the judgment—I mean with regard to the point as to the dominium utile of Boquhanran. I think, with reference to that, the judgment of the Court ought to he altered or explained in the way proposed by my noble and learned friend on the Woolsack.
Then as to the second appeal, the question raised by Mr Dunn Pattison in that appeal presented to my mind much more difficulty than the one which was raised in the appeal on which I have expressed my opinion. I think that was a very difficult question, and one as to which there is little if any precedent. But I think there are principles that settle it. There is, in some degree, a conflict of principles in the circumstances that occurred. The general rule is, that when a consolidation of the dominium utile and the dominium directum takes place, the dominium utile is merged or swallowed up in the dominium directum, and that the whole will go in the same direction—that is in the direction of the dominium directum. That is certainly the general principle, and if in this case Alexander Dunn had held the dominium directum destined to himself and one series of heirs, and had held the dominium utile destined to himself and another series of heirs, without there being any other controlling interest in the matter, it might have been held, and probably would have been held, that by consolidating them he sent the dominium utile in the direction in which the dominium directum was to go. But then there is another principle, another power, which comes into operation in this case, and that is founded upon the circumstance that there was a controlling personal destination as to the dominium directum—a controlling personal right—and so long as Alexander Dunn merely made up his titles by entry, that personal title controlled it.
Now, then, the dominium utile being hooked on as it were to the dominium directum, the question arises, how is the right which Mr Dunn Pattison had under William Dunn's deed, which was a controlling right, to be rendered effectual? Upon that, the first question is, what was his right under William Dunn's deed? His right under William Dunn's deed was to have the dominium directum, but it gave him no right to get the dominium utile. Then what right has he to the dominium utile? His only right to the dominium utile must be this, that he claims that Alexander Dunn gave it to him by consolidating it with the dominium directum—that Alexander enriched as it were the dominium directum for his benefit. That is said to be apparent from the words of resignation, which import a resignation ad remanentiam, that the two were to remain united together. Those are words of style; but still the question remains, whether we are to hold that Mr Dunn Pattison is, through and by virtue of the rights he had, entitled, under that personal title which William Dunn gave him, to demand from the heir more than was given to him by William Dunn, and whether we are to hold that it was the intention of Alexander Dunn so to enrich the dominium directum. I cannot hold that to be so. I think, upon the whole, that the prevailing rule ought to be, that the heir of the dominium directum—the heir of provision—was not the heir Alexander Dunn had in his mind when he resigned the dominium utile into his own hands, to remain with him and his heirs. And if that be so, if we are to hold that that was not the purpose of Alexander Dunn (and I think there are various circumstances which indicate that it was not his purpose), I do not think we can apply the rigid rule which might exist in other circumstances of the dominium directum swallowing up the dominium utile to a case where it is only upon a limited personal title as the heir of provision that Mr Dunn Pattison comes in claiming that which William Dunn gave him. It was in the power of Alexander Dunn during his life to have separated these interests. It was in his power to have left them to his heir-at-law or to any other of his grand nephews or nieces, and it is impossible to
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Mr Anderson—Perhaps your Lordships will allow me, before the question is put, to explain that there are some other parcels of land, called by other names, in the same position as Boquhanran; and, for the sake of accuracy, I presume your Lordships' declaration will include all the parcels which are in the same position with Boquhanran. We make no distinction between them and Boquhanran, which was taken merely for the purposes of argument, as the primary subject to be dealt with. We understand your Lordships' judgment I think thoroughly, and I believe the parties will have no difficulty in adding words which will make it embrace all the lands in the same position as Boquhanran.
Lord Chancellor—Are all the parties agreed as to that?
Lord Advocate—I did not receive any notice of this, my Lords, until just now; but Boquhanran was the only estate which was the subject of discussion in the Court below. The other estate—Kilbowie—
Mr Anderson—Faifley.
Lord Advocate—I refer to that estate particularly in which my client Mr Black is interested—that was not mentioned in the Court below at all. It has been introduced I see in the reasons of appeal; but no argument was submitted upon it separately, and I have special answers to any such claim if it is made at the instance of the heir-at-law—for instance under William Dunn's deed.
Lord Chancellor—My Lords, I think your Lordships will agree with me that nothing can be more inconvenient than that after the argument has proceeded throughout on the title to Boquhanran alone, without touching upon any other property whatever, a suggestion should now be entertained that other properties will be found to be in the same position as Boquhanran, unless all parties are agreed that that is the case. If they are, there may probably be no objection to including the other properties; but if they are not agreed, it appears to me that it would be wholly impossible for us to do what has been suggested.
Interlocutor of the 27th March 1866 affirmed, with a variation; cause remitted; and, subject to such variation and remit, the appeal dismissed with costs.
Interlocutor of the 20th of July 1866 affirmed; and the original appeal and the three cross appeals against the said interlocutor dismissed, with costs.
Solicitors: Agents for Barstow— Murray, Beith, & Murray, W.S., and Martin & Leslie, London.
Agents for Pattison— Dundas & Wilson, C.S., and Connell & Hope, London.
Agents for Black— John Boss, S.S.C., and Simson & Wakeford, London.
Agents for Boyd and Others— James Webster, S.S.C., and Loch & Maclaurin, London.