Brown's Trustee v Brown
| Jurisdiction | Scotland |
| Judgment Date | 22 June 1943 |
| Docket Number | No. 44. |
| Date | 22 June 1943 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
SuccessionDestinationConjunct destinationPurchaser of heritage taking title in names of himself, his daughter and his future wife and survivors and survivorPurchaser predeceasing othersWidow next deceasingPower of purchaser and widow to evacuate destination by testament.
A purchaser of heritage, who provided the funds, took the title in the names of himself, his daughter and his future wife, and "the survivors and survivor of them and their respective assignees and disponees and the heirs of the last survivor." He predeceased the other disponees, leaving a will whereby he directed his trustees to convey his share of the heritage to his son. The wife survived her husband but predeceased the daughter and son, leaving a will whereby she disposed of her share in the property. In a question whether the husband and the wife were entitled to convey their respective shares of the property by their settlements, or whether their shares passed to the daughter under the destination,
Held (1) that the wife, having accepted a gift of a share of the heritage under a condition contained in the destination and imposed by the donor, could not evacuate the destination of her share by testament; but (2) that the husband, being himself the donor, was not bound by the destination, which in his case was merely testamentary in effect and defensible by him at will.
Renouf's Trustees v. Haining, 1919 S. C. 497, andTaylor's Executors v. Brunton, 1939 S. C. 444,explained and followed.
By feu-disposition dated 12th and 17th May 1927, and recorded in the General Register of Sasines for the County of Ayr on 23rd June 1927, the heritable proprietors of certain ground in the burgh of Prestwick sold alienated and in feu farm disponed that ground to the Reverend Edward Brown, Miss Janet M'Millan Brown and Mrs Jane Galt Nisbet "and to the survivors and survivor of them and to their respective assignees and disponees, and to the heirs of the last survivor." Miss Janet M'Millan Brown was a daughter of Mr Brown by his first marriage and Mrs Jane Galt Nisbet was a widow to whom Mr Brown was then engaged and whom he subsequently married. By the disposition, which was signed both by the granters and by the disponees, the latter were taken bound to maintain a dwelling-house then in course of erection on the ground disponed, and later known as "Douglaslea." The whole funds expended in connection with the purchase of the ground and the erection of the dwelling-house were provided by Mr Brown.
Mr Brown died in 1937, leaving a trust-disposition and settlement dated 16th August 1935, whereby he appointed trustees to whom he conveyed "the whole means and estate heritable and moveable real and personal of every kind and wherever situated which shall belong to me at the time of my death, including all means and estate held by me at the time of my death under special destinations and all means and estate of which I may at my death have the power of disposal or appointment." By the second purpose of his settlement, he directed his trustees to offer to purchase from his daughter Janet M'Millan Brown the one-third share and interest which she had in the heritable property of "Douglaslea" at a certain price. The trustees made this offer, which was accepted, and Miss Brown's share in the property was conveyed to the trustees by disposition dated 24th January 1939. The fourth purpose of the settlement was in the following terms:"On the death of the survivor of me and my said wife I direct my trustees to dispose of the said residue of my said means and estate (if or to the extent to which it exists after carrying out the foregoing provisions) as follows:(One) to dispone and convey to my son Matthew Gardner Brown the said heritable property known as Douglaslea aforesaid, so far as belonging to me at my death, along with the portion thereof belonging at time of my death to my said daughter, if the same has been purchased by my trustees as hereinbefore provided. "
Mrs Jane Galt Kelly or Nisbet or Brown died on 30th January 1942, leaving a trust-disposition and settlement dated 14th January 1938, and four relative codicils dated 10th October 1938, 31st January and 19th November 1940, and 9th July 1941. By the last-mentioned codicil, she bequeathed her whole share right and interest in the heritable property to Mrs Jean Connell Kerr or Lamont.
Questions having arisen as to the rights of parties in the heritable property, a special case was presented for the opinion and judgment of the Court of Session. The first party was Mr Brown's sole surviving trustee. The second party was his son, Matthew Gardner Brown. The third party was Mrs Jean Connell Kerr or Lamont. The fourth party was Mr Brown's daughter, Janet M'Millan Brown.
Parties were agreed that, if it was competent for Mr Brown and Mrs Brown (formerly Mrs Nisbet) to dispose of their interests in the heritable property by mortis causa deed, they had effectively done so.
The contentions of the parties were stated as follows:"(12) The first party contends that the effect of the said trust-disposition and settlement of [Mr Brown] was to convey to him as trustee a one-third share in said heritable property, and that by purchase a second one-third share was obtained from the fourth party, and that the first party is now in right as trustee foresaid of two-thirds of said property, which two-thirds are directed to be conveyed to the second party. (13) The second party adopts the contention of the first party. (14) The third party contends that the said Mrs Jane Galt Kelly or Nisbet or Brown validly and effectively bequeathed to her a one-third share in the said heritable property. (15) The fourth party contends that the said feu-disposition was contractual, and that by the terms of the destination therein written she, as the last survivor of the three disponees therein named, became vested in the whole of said heritable property; and that she is now entitled to a two-third share of said heritable property, being the whole property less the one-third share disponed by her to the trustees of Mr Brown."
The questions of law for the opinion of the Court were:"(1) Were [Mr Brown] and Mrs Jane Galt Kelly or Nisbet or Brown each entitled to dispose by mortis causa settlement of one-third share in said heritable property? Or (2) Is the fourth party, as the last survivor of the disponees in said feu-disposition, entitled now to the whole of the said heritable property less the one-third share thereof disponed by her to the trustees of [Mr Brown]?"
The case was heard before the Second Division on 4th June 1943.
At advising on 22nd June 1943 (when, in the absence of Lord Wark, his Lordship's opinion was read by Lord Jamieson),
LORD JUSTICE-CLERK (Cooper).In 1927 the late Mr Brown purchased with his own funds a house, Douglaslea, the title to which was taken by his instructions to himself, Mrs Nisbet or Brown (whom he shortly afterwards married) and Miss Brown (his daughter by a previous marriage), "and to the survivors and survivor of them and to their respective assignees and disponees...
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