M'Leod's Trustee v M'Luckie, Company
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1883 |
| Docket Number | No. 167. |
| Date | 28 June 1883 |
| Court | Court of Session |
Ld. M'Laren. M., Lord President, Lord Mure, Lord Shand.
Succession—Words importing a bequest of heritage—Titles to Land Consolidation Act 1868 (31 and 32 Vict. cap. 101), sec. 20.—
A testator died in 1882, leaving a testamentary deed, in which she nominated a ‘sole executor and trustee.’ After a few bequests of moveables there came this clause,—‘I also direct my trustee to sell the remainder of my property, wherever situated, and to divide it equally among all my grandnieces.’ The whole estate, with the exception of furniture and a balance in bank, consisted of heritage. The legacies more than exhausted the moveable estate. Held that the deed imported an intention on the part of the testator to bequeath her whole heritable and moveable property, and that her heritage was effectually conveyed to the trustee.
Miss Anna M'Leod died on 1st April 1882, leaving the following settlement, dated 24th March, and recorded llth April 1882:—‘I, Anna M'Leod,.…do hereby appoint Mr David Nicolson, of Parson's Green, to be my sole executor and trustee, and desire him, after paying all my just debts, if there be any, to put a handsome railing round my father's grave in the Calton Burying-Ground. I promised an annuity of £20 a-year to I. P. during her lifetime, and I also wish and direct that Mrs G.'s annuity of £10 a-year to be continued during her lifetime. I give to Mrs M. and Mrs S. the choice of any of my possessions at present in my house, excepting the bookcase and books in the dining-room, which I give to Dr N., and the cabinet in the drawing-room, which I give to Mrs C. and D. S.'s two pictures, which I give to my trustee, David Nicolson; I also wish all my relatives to have a remembrance of my brother.. before the remainder is sold, and I direct that M. P. is to get the sum of £20 and my clothes. I also direct my trustee to sell the remainder of my property, wherever situated, and to divide it equally among all my grandnieces, except those in Dunedin: (signed) Anna M'Leod’ (then followed the signatures and designations of the witnesses).
Mr Nicolson, as executor-nominate, gave up an inventory of the deceased's moveable estate, amounting to £346, 7s. 6d., consisting of—
| ‘1. Cash in the house, | £23 | 0 | 0 |
| ‘2. Household furniture and other effects, | 152 | 9 | 0 |
| ‘3. Balance on account-current with the Commercial Bank, with interest, | 91 | 11 | 5 |
| ‘4. Proportion of rents of heritable property, amounting to £205,8s.6d. per annum, to date of deceased's death, | 79 | 7 | 1 |
| £346 | 7 | 6’ |
The deceased was also possessed of considerable heritable property in Edinburgh, consisting of—
| 1. House at 40 Grange Loan, worth | £1100 | 0 | 0 |
| 2. Properties in Milne Square and North Bridge, Edinburgh, worth | 2500 | 0 | 0 |
| 3. Property at 29 Minto Street, worth | 1100 | 0 | 0 |
| 4. Property in Archibald Place, worth | 580 | 0 | 0 |
| £5280 | 0 | 0 |
Mr Nicolson, as trustee, made up a title to the heritage.
The moveable estate was inadequate to pay the debts due by the deceased, and the legacies and annuities bequeathed by her; the trustee accordingly proceeded to sell the heritage, and contracts of sale were concluded of certain of the properties mentioned above. But an objection was taken by the purchasers to the validity of the trustee's title, on the ground that the settlement did not convey heritage.
The trustee accordingly brought this action of declarator against (1) the heir-at-law of the deceased, and (2) the purchasers of the properties in question, to have it found that the settlement was a valid ‘and effectual conveyance’ of the subjects in question, and that the pursuer was vested in them, and entitled to sell and convey them, and that the purchasers were bound to implement their contract.
The heir-at-law did not enter appearance, and decree in absence was pronounced against him.
The other defenders pleaded, inter alia;—(1) The testamentary documents founded on being invalid and insufficient in law, et separatim, the same not being a conveyance of the deceased's heritable estate to the pursuer, he has no title to sue. (2) The pursuer not having a valid title to the heritable properties in question, or to any of them, is not in a position to implement the various contracts founded on, and the defenders are therefore entitled to absolvitor, with expenses.
The Lord Ordinary, on 3d March 1883, gave decree in terms of the second declaratory conclusion of the summons.*
The defenders reclaimed, and argued;—It had no doubt been held upon an...
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