Minto's Trustees v Minto
| Jurisdiction | Scotland |
| Judgment Date | 09 November 1898 |
| Date | 09 November 1898 |
| Docket Number | No. 12. |
| Court | Court of Session (Inner House - Second Division) |
Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
Succession—Testament—Revocation—Special destination of heritage—Subsequent general disposition.—
In 1873 A purchased certain house property, taking the disposition to himself and his wife, and the longest liver of them, and the assignees of the longest liver, heritably and irredeemably, but reserving to himself full power and liberty to dispose of the subjects either onerously or gratuitously as he might think proper as fully as if he were absolute fiar.
A died in 1898, leaving a trust-disposition and settlement, dated in 1896, by which he conveyed his whole estates to trustees, directing them to pay the whole free income to his wife, if she survived him, with the proviso that if in any year the free income did not amount to £100, the trustees were to make up that sum, and pay it to the widow, out of capital. The fee was directed to be paid to nephews and nieces of A and his wife, and he further revoked ‘all settlements executed by’ him.
A was survived by his wife. She claimed the property purchased in 1873, and also her provision under the trust-disposition and settlement, and a special case was presented.
The case stated that besides the property purchased in 1873, the rental of which at the testator's death was £43, 10s., he left other house property, purchased by him after 1873, of an estimated rental at the date of his death of £102. The parties were agreed that if the subjects of the disposition of 1873 did not fall under the trust-disposition and settlement, the free income of the trust might not amount to £100.
Held that the presumption that a subsequent general disposition does not evacuate a prior special destination taken by the testator had been overcome, and that the widow was consequently entitled to her provision under the trust-disposition and settlement only.
By disposition dated 7th and 8th May 1873, William Minto, brush manufacturer, Dundee, purchased certain portions of a tenement in Barrack Street, Dundee. The disposition bore that the price (£600) was paid by Mr Minto, and that the disponers ‘at his request, but with the reserved power, faculty, and liberty in his favour after mentioned,’ disponed the subjects in favour of him and ‘Margaret Sheriffs or Minto, his wife, and to the longest liver of them, and the assignees of the longest liver, heritably and irredeemably.’ (Here followed description of flats and attics in question.) ‘Declaring also that the said William Minto shall have full power, faculty, and liberty by himself alone, without the consent of his said wife, to sell and dispose of and dispone and convey the foresaid subjects and others, and that either for onerous or gratuitous causes as he may think proper; as also to burden the said subjects and others above disponed with debt, to such extent as he may think proper, and grant bonds and dispositions in security, or other deeds in security, over and affecting the said subjects and others for securing payment to the lenders, all as fully, freely, and effectually as if he were sole fiar of the said subjects hereby disponed.’ The disposition was recorded, on the instructions of Mr Minto, in the Register of Sasines on 8th May 1873, with a warrant of registration thereon in the following terms:—‘Register on behalf of William Minto, brushmaker, Dundee, and Margaret Sheriffs or Minto, his wife, and the longest liver of them, in the Register of the burgh of Dundee.’
Mr Minto died on 17th March 1898, leaving a trust-disposition and settlement, dated 8th September 1896, by which, ‘with the view of providing for the management of and settling the succession to my property, means and estate after my death,’ he conveyed to trustees ‘All and sundry lands and heritable estate of every description presently belonging or which shall belong to me at the time of my death; as also the whole moveable means and estate of whatever kind and denomination and wheresoever situated now belonging or due to me, or which shall belong or be due to me at the time of my death, with the whole writs, titles, vouchers, and instructions of or concerning the property, means, and estate hereby conveyed, and all that has followed or is competent to follow thereupon’ for the purposes following, viz., in the first place, payment of debts and funeral expenses, and the expenses of executing and fulfilling the trust, ‘which latter expenses my trustees may, in their discretion, pay either out of capital or out of income, or partly out of capital and partly out of income’; in the second place, payment of his household furniture to his wife in the event of her surviving him. ‘In the third place, in the event of my said wife, Mrs Margaret Sheriffs or Minto, my brother John Duncan Minto, and Margaret Helen Carnegie, presently residing with me, my said wife's niece, or any of them, surviving me, my trustees shall hold the residue of my property, means, and estate (including all income accruing up to the first term of Whitsunday or Martinmas after my death) until the death of the last survivor of them; and while the said residue is so held by my trustees, they shall dispose of the free income thereof, arising from and after the said first term of Whitsunday or Martinmas after my death as follows in the events after mentioned, viz.:—(First) In the event of my said wife surviving me, my trustees shall pay to her, during all the days and years of her life, the whole of the said free income of the residue of my property, means, and estate, and that yearly, half-yearly, or otherwise as to my trustees may seem proper; and if the said free income shall not in any...
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