Hay's Trustee v Hay's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 10 January 1951 |
| Date | 10 January 1951 |
| Docket Number | No. 31. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
SuccessionDestinationHusband and WifePurchase of heritable property with wife's moneyTitle taken in favour of spouses and survivorWife predeceasing husbandPower of wife to evacuate destination by testament.
The seller of a heritable property granted a disposition of the subjects which, on a narrative that the price had been paid by a husband and wife, conveyed the subjects to the spouses "and to the survivor of them and to their or his or her heirs and assignees whomsoever." After the disposition had been duly recorded on behalf of both spouses, they diedthe wife predeceasing the husband and leaving a trust-disposition and settlement whereby she disponed to trustees her whole means and estate "including all means and estate held by me at my death under special destinations." In a special case, brought to determine the effect of the trust-disposition, it was agreed that the wife at her death held no estate under special destinations other than her interest in the subjects already mentioned. It was also agreed that, contrary to the narrative in the seller's disposition, the whole price had been provided by the wife.
Held that, as the whole price had been paid by the wife, she had power to evacuate the destination of her own pro indivisoshare, but that she had no power to alter the destination of the share in which her husband was infeft.
Perrett's Trustees v. Perrett, 1909 S. C. 522, andBrown's Trustee v. Brown, 1943 S. C. 488,commented on.
Per the Lord President:"It seems to me unfortunate that the device of a special destination, originally introduced before 1868 for the purpose of overcoming the prohibition which then prevailed against wills of heritage, should still be utilised in circumstances which, as our reports show, are more likely to be productive of litigation than of any compensating advantage to the parties concerned."
By disposition dated 1st July 1935, Miss Eliza Urquhart, heritable proprietor of subjects known as Ness View Private Hotel, Inverness, "sold and disponed" the subjects to James Gordon Hay and Mrs Katherine Ann Ironside Gall or Hay, his wife, "and to the survivor of them and to their or his or her heirs and assignees whomsoever, heritably and irredeemably." The disposition, which proceeded on a narrative that the price had been paid by both spouses, was registered on behalf of both on 8th July 1935. The date of their marriage was 17th October 1932.
Mrs Hay died on 22nd February 1944, survived by her husband and by the only child of the marriage. She left a trust-disposition and settlement, dated 29th July 1940, whereby she conveyed to trustees "the whole means and estate heritable and moveable real and personal of what kind soever and wherever situated which shall belong to me at the time of my death including all means and estate held by me at my death under special destinations." Subject as therein provided, the trustees were directed to hold the whole residue for the maintenance and upbringing of the child.
Mr Hay, who remarried, died on 16th February 1950, predeceased by his second wife and survived by the child of the first marriage and by two children of the second marriage. He left a will, dated 25th April 1949, whereby he conveyed his whole means and estate to trustees with an instruction to divide the whole residue equally among his three children.
Questions having arisen as to the effect of the first Mrs Hay's trust-disposition and settlement, a special case was presented for the opinion and judgment of the Court. The first party was the sole trustee acting under Mrs Hay's settlement, and the second parties were Mr Hay's trustees.
The case, in addition to giving the facts already summarised, stated that, contrary to the narrative in the disposition by Miss Urquhart, the whole of the purchase price of the hotel was in fact provided by Mrs Hay out of her own funds; that there was no evidence, other than might be inferred from the transaction itself, as to whether the taking of the disposition in such terms was contractual, or by way of gift, or otherwise; that during their respective lives neither spouse...
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