Carruthers v Crawford
| Jurisdiction | Scotland |
| Judgment Date | 15 December 1944 |
| Date | 15 December 1944 |
| Docket Number | No. 12. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Russell.
SuccessionTestamentary disposition of heritageCharacter of interest conveyedFee or interest terminable on marriage or death.
By a holograph mortis causa disposition the granter disponed his dwelling-house to his two daughters equally between them "so long as they are unmarried," with the whole writs, vouchers and instructions concerning the same. In the event of the death or marriage of either daughter, he directed that the house should become "the sole property" of the other, "so long as she is unmarried," and, in the event of both being married, that it should be sold and the proceeds divided equally among his son and the daughters. Both daughters survived their father and died unmarried. The survivor of the daughters left a will by which she bequeathed the house to a third party.
Held (diss. Lord Mackay) that the fee of the subjects was not carried by the disposition but remained in thehreditas jacens of the granter, and, accordingly, that the daughter's bequest was ineffectual.
Thomas Carruthers brought an action against Alexander Robertson Crawford in which he concluded for declarator that he was heritable proprietor of "All and Whole the dwelling-house 64 Queen Street, Dumfries, formerly known as 5 Queen's Place, Dumfries, in the county of Dumfries, described in Notarial Instrument in favour of Andrew Carruthers, recorded in the New Particular Register of Sasines, Reversions, & c., kept in the Burgh of Dumfries, on 8th March 1883."
The circumstances in which the action was brought were as follows:Andrew Carruthers, Dumfries, died in 1890, leaving a holograph disposition and settlement, dated 23rd November 1885, and recorded in the Sheriff Court Books of the County of Dumfries on 11th March 1890, by which he provided, inter alia:"I, Andrew Carruthers, residing at No. 5 Queen's Place, Dumfries, do hereby, in the event of my death, give, grant, assign and dispone to my daughters, Sarah Carruthers and Elisabeth Carruthers, equally between them so long as they are unmarried, All and Whole that dwelling-house situated at No. 5 Queen's Place, and presently occupied by me, with the whole writs, vouchers and instructions belonging to and concerning the same; But in the event of the death or marriage of one of them, then the said house shall become the sole property of the other or one who is unmarried, so long as she is unmarried and in the event of both being married the said house shall be sold and divided equally in three parts, one third to my son, William Carruthers, and one third each to my daughters Sarah and Elisabeth Carruthers." Thereafter he left his furniture and other household requisites to his daughters, one half of the money in his bank to his son William and the other half to his two daughters, and he nominated executors.
Andrew Carruthers was survived by his son William and his daughters Sarah and Elisabeth. Both daughters died unmarried, Sarah surviving Elisabeth and dying in June 1935. The pursuer was the eldest son and heir-at-law of William Carruthers who died intestate in October 1918. William Carruthers was the second son of Andrew Carruthers, whose eldest son Thomas Carruthers had died unmarried in November 1885, and thus predeceased his father.
Sarah Carruthers, the surviving sister, left a will dated March 1935, by which she provided, inter alia:"I, Miss Sarah Carruthers, residing at 64 Queen Street, Dumfries, in order to settle the succession to my means and estate do give, grant and dispone to Hugh Crawford, residing at 64 Queen Street, Dumfries, the dwelling-house No. 64 Queen Street, Dumfries, with the whole household furniture and furnishings." Hugh Crawford had lived as a lodger with Sarah Carruthers for some years before her death, and after her death he continued to live at 64 Queen Street, Dumfries, until his own death in April 1941. He took no steps to complete a title to the property in his own name, but after he took possession of the property spent upwards of three hundred pounds on improvements and repairs thereon. He died intestate. He was survived by his widow, but by no children. The defender, his brother, was his heir-at-law. On the death of Hugh Crawford negotiations took place for the sale of the house. Upon an investigation of the title a question arose as to the ownership, and the present action was brought.
The pursuer pleaded, inter alia:"(2) On a sound construction of the disposition and settlement of the said Andrew Carruthers, the fee of the said subjects being undisposed of, and the pursuer being now entitled thereto, decree of declarator should be pronounced as concluded for."
The defender pleaded:"The said Sarah Carruthers having been the fiar of the said subjects at the time of her death, and having validly bequeathed them to the said Hugh Crawford, and the said Hugh Crawford having died intestate, the defender as the heir-at-law of the said Hugh Crawford is entitled to succeed to the said subjects, and he should be assoilzied from the conclusions of the summons."
On 8th June 1944, the Lord Ordinary (Russell), after a hearing in the Procedure Roll, pronounced the following interlocutor:" Finds that on the death of Sarah Crawford on 8th June 1935 the succession to the right of fee in the property as described in the conclusion of the summons passed on intestacy to the pursuer as representing the heir-at-law of the testator Andrew Carruthers."
LORD JUSTICE-CLERK (Cooper).In this case we have to determine the effect of a mortis causa disposition of a house executed in 1885 by a granter who died in 1890, and in particular whether the defender's author had a right of fee in that house by virtue of which she was entitled to convey the house by will to the defender's brother in 1935.
The house was the residence of the granter, and by his disposition he purported to dispone the house, with the whole writs, vouchers and instructions, to his two daughters, Sarah and Elisabeth, "so long as they are unmarried." As expressed, this limitation is inherent in the grant; and it is followed out in the two succeeding provisions, (a) that, in the event of the death or marriage of one of the daughters, "the aid house shall become the sole property of the other or one who is unmarried, so long as she is unmarried," and (b) that, in the event of both being married, the subjects are to be sold and divided equally between the two daughters and the granter's son.
The second half of the deed consists of a testament of moveables with a nomination of executors, and the operative provisions are (a) a bequest to Sarah and Elisabeth of the household furnishings; and (b) a bequest of money in bank one half to the testator's son and one half to the two daughters.
Reading the disposition and settlement as a whole in the light of the admitted facts, I consider that the general purpose which inspired the provisions is sufficiently plain. The granter evidently desired that the use and occupation of the old home should remain available to his daughters until, if ever, they married and found homes of their own; but when this purpose was served, his conception was that the house should cease to be regarded as the home but should simply be treated, like the money in bank, as an asset divisible between and among his three children. Upon this view the granter never intended to confer a fee either upon the daughters jointly or upon the survivor alone; and, if it is permissible to speculate as to his probable wishes in the events which have happened, it is difficult to believe that he would have desired that the house should now pass on a gratuitous title to the brother of a person who happened to be lodging with his daughter some forty years after his death, in preference to his own grandson.
It was substantially on these lines that the Lord Ordinary reached the conclusion that there was no gift of a fee to the daughters or either of them, the gift being confined to a "liferent interest terminable on marriage or death." But he has reached this conclusion by
applying to the disposition and its clauses the same methods of construction as are applicable to a trust settlement, and it is necessary to observe that we have here to deal not with a trust settlement but with a disposition of specific heritage direct to named disponees. In relation to such a conveyance of land the rules and presumptions which have been established with regard to beneficial interests under wills of moveables or trusts may have no proper application: Turner v. GawUNKSC1; Tristram v. M'HaffieUNK.2 It is therefore necessary to examine the disposition more narrowly, and to examine it as a disposition of heritage, with a view to determining the precise character of the rights and interests sought to be conveyed. As Lord Watson reminded us inStudd v. CookELR,3 at p. 60, the search is still for the intention of the granter of the deed, but that search has to be conducted against a different background when the deed to be construed is a disposition of heritage and is as such subject to the rules which regulate the transfer and transmission of heritable rights.
Two views were presented for the defender and reclaimer, (a)that there was a gift of a fee to the two daughters jointly, with a "substitution" in favour of either who survived the marriage or death of the other and remained a spinster; or (b) that, if there was no true substitution, there was a gift of the fee to the two daughters jointly sub conditione, and that this condition was effectual inter heredes though not against onerous creditors, as in Lawson v. ImrieUNK.4
Both these submissions postulate an initial gift of the fee, and I can find none. The only gift in favour of the daughters is limited in point of time and of extent by the words "so long as they are unmarried," which I read as an essential qualification of the grant. If the words had been "so long as they live," it could hardly have...
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