Robertson v Hay-Boyd
| Jurisdiction | England & Wales |
| Judge | Viscount Haldane,Viscount Dunedin,Lord Shaw of Dunfermline,Lord Blanesburgh,. |
| Judgment Date | 19 December 1927 |
| Judgment citation (vLex) | [1927] UKHL J1219-4 |
| Date | 19 December 1927 |
| Court | House of Lords |
| Docket Number | No. 2. |
Viscount Haldane.
Viscount Dunedin.
Lord Shaw.
Lord Phillimore.
Lord Blanesburgh.
My Lords,
I agree in the opinion so authoritatively expressed by my noble and learned friend Viscount Dunedin.
Stripped of what appears to me not to be essential, the facts in this case are as follows. Colonel Hay-Boyd, by his testamentary instructions to his trustees provided that his estate of Dornal (together with certain things which may, I think, be taken as not affecting the question in issue) should go to “Frederick Lockhart Robertson,” “my nephew and the heir male of his body.” “Declaring that should the said Frederick Lockhart Robertson die without male issue survived by my said daughter,” Mary Elizabeth Hay-Boyd or Roberts, “or her issue,” the said estate of Dornal” “shall revert and belong to my said daughter and her heirs, but should my said daughter have predeceased the said Frederick Lockhart Robertson and left no surviving issue then the said estate” “shall go to the heirs whomsoever of the said Frederick Lockhart Robertson.”
Colonel Hay-Boyd died in 1905, survived by both his nephew Frederick Lockhart Robertson and his daughter Mrs. Roberts (Hay-Boyd). She was, in point of fact, his heir at law. The nephew died in October 1925 unmarried. By his settlement he left to the appellants as his trustees all his estate, including Dornal. The appellants claimed that a full right of fee had been given to them in, among other properties, Dornal. They contracted to sell Dornal to the second set of respondents, the trustees of the late Sir William Phipson Beale, who were made defendants, in order to test their title, to the action out of which this Appeal arises. In the action the first respondent, Mrs. Roberts (Hay-Boyd) as the chief defender, contended that the provision relating to Dornal either constituted a preliminary condition of the gift instituting the nephew which was not fulfilled, or was operative as embodying a clause of return in her favour, which (although capable of being defeated by an onerous deed) was not defeasible by a deed which was not onerous. Consequently she claimed to be entitled to Dornal, notwithstanding the voluntary settlement made by the nephew. The Lord Ordinary (Lord Moncrieff) decided that the nephew was not entitled to defeat the provision made in Colonel Hay-Boyd's testamentary instructions by a voluntary mortis causa conveyance, and that the estate belonged to the first respondent. The First Division, by a majority, Lord Blackburn dissenting, affirmed this decision.
The action was one in which they sought firstly a declaration against the first respondent that she had no title, and secondly, calling on the second respondents to implement their agreement to purchase from the appellants. The points raised for the appellants at the Bar of this House are therefore, to begin with, that the provision to be construed imported a conditional institution of the daughter, which became inoperative in the event of the nephew predeceasing the testator, a conditional institution which was inoperative inasmuch as the nephew did survive the testator. As the daughter survived the nephew the ultimate destination was undisturbed, unless, as the respondents contended, the disposition of Dornal contained in his trust disposition and settlement gave them the title to it.
My Lords, the first question is whether the provisions imported no more than an intention to make a conditional institution of the daughter in the event of the nephew not surviving the testator. It is said that it would follow, if this contention is well founded, that when the nephew died without male issue, survived by the daughter, he took, under the words of reverter. For any later words in the original provision which might have prevented this had been satisfied and exhausted as constituting the initial conditional institution.
My Lords, I am unable to accept this construction of the words used. The testator's direction that the estate should revert to his daughter after having been in the possession of the nephew excludes a purpose to be made operative only at the time of his own death. The intention is obviously to constitute a succession to continue after his life, and to provide for successive titles in the nephew and daughter and their respective heirs.
The really difficult question in the Appeal is the second one raised by the appellants. They say that, if the destination was by way of substitution, there is no validly constituted clause of return imposed by the testator that was operative to prevent the nephew from disposing of Dornal by a voluntary disposition.
My Lords, an English lawyer whose mind has been steeped in the traditions of the law of England relating to real property has to be careful to divest himself of presupposition in approaching this matter. By English law the fee simple estate in land can be split up into a freehold estate for life, followed by subordinate estates in fee, such as a fee tail and a remainder or reversion in fee to the grantor. By the English Common law a series of substitutions, such as is familiar to Scottish jurisprudence, is unknown. If something resembling a substitution to each other of fee simple owners is to be brought about it is done by a succession of trusts or uses succeeding each other, and this may be effected by the operation of the Statute of Uses, which converts the trusts or uses into legal estates. It is only so that the fee simple can be made to shift unless it is broken up into constituent estates the later of which are expectant on those that are prior.
But in Scotland it is quite otherwise The full fee can be burdened by a life-rent or by a trust, but it cannot be disintegrated into constituent estates. If it is to be held by successive owners this is done by means of substitution under a distribution by virtue of which the full fee simple passes from one holder in full fee to another. Especially since the statutes regulating entails have been operative, it has been difficult to make such destinations binding on the successive holders. They may defeat them by onerous, or even, as here where the disposition was by mortis causa deed, by gratuitous alienation. But on this liberty there are restrictions, although the successive interests in fee may be conferred subject to conditions.
I have had the advantage of studying the opinion which has been prepared for the purposes of this case by my noble and learned friend Lord Dunedin, and which we have just heard read. He points out that a proper clause of return stands by itself in the law of Scotland. The person relying on it, if he is to escape the effect of even a voluntary disposition by an otherwise free institute or substitute, has nothing to depend upon except the clause of return. There is in this case no specification of a condition, nor prohibition against alienation, nor is the succession under the settlement what is termed a protected one. My noble and learned friend warns us against assuming that the law as to protected settlements is in an exactly defined state. For myself I follow his view that here the restriction must, if it is to be relied on, be interpreted as a clause of return or nothing.
Is the clause before us a good clause of return ? The law regarding these clauses is far from being in a distinct condition. I have read through the series of cases in Morison's Dictionary, and I have read also Lord Medwyn's propositions in Mackay's case ( 13 Shaw 246), and particularly his second and third propositions. I doubt much whether, in view of the authorities, a clause of return can be valid if it is in favour of anyone else than the granter himself, possibly with a substitution of his heirs. The exceptional law relating to clauses of return is not one which we should seek to extend to-day. I think that it would be a material extension of it to say that where it is provided that on a certain condition being fulfilled the estate should “revert and belong to my said daughter and her heirs” is the same thing as a clause of return to the granter and his heirs, even where in point of fact the daughter was his heir. To so hold would be to turn a mere attempt at a substitution into something like what, under the very different system in England, would be admissible as a reservation of a reversion. I am confirmed in my reluctance to so hold by the opinions expressed by two distinguished Scottish Judges, Lord Low and Lord Rutherfurd Clark in ( Watson v. Hamilton 21 R., 451). It is not necessary to consider here whether there can be any valid clause of return in a mortis causadeed where the granter is dead before the clause can operate. For there is no substitution of his heir nominatim, and such a substitution would be requisite to render the destination free from uncertainty, requiring extraneous evidence of the person to take.
My Lords, I have come to the conclusion that Lord Blackburn was right in his dissenting judgment and that we ought to reverse, and to declare that on the death of Frederick Lockhart Robertson Dornal passed to the appellants under his settlement, and to remit to the Court of Session to give effect to this declaration. The appellants will have their costs in this House.
My Lords,
At the request of the noble Viscount on the Woolsack I shall read the first opinion.
On 16th April 1898 the late Colonel James George Hay-Boyd executed a formal trust disposition and settlement, and on 1st December 1902 he executed a memorandum of instructions to his trustees. By the trust disposition and...
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