Shand's Trustees v Shand's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 02 June 1966 |
| Docket Number | No. 21. |
| Date | 02 June 1966 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
SuccessionDestinationHeritage acquired by a brother and two sisters by contributing rights of successionDestination in favour of all three jointly and the survivorEvacuation by will of predeceasing sister.
A brother and two sisters held three heritable properties under special destinations in their favour jointly and the survivors and survivor of them and their heirs and assignees whomsoever. To acquire two of the properties each of them had contributed, pursuant to an arrangement among them, their several rights in the succession of their deceased father, and a deceased sister, and to acquire the third each had contributed money towards the price. The brother died intestate, and, in terms of the special destinations, his interests in the three properties passed to his sisters. Thereafter one of the sisters died leaving a trust disposition and settlement dated after the last of the three dispositions containing the special destinations, by which she conveyed to trustees, inter alia, all means and estate held by her at her death under special destinations.
Held that in regard to the revocability of the destinations the contribution of property rights had the same effect as the contribution of money and that none of the destinations could be evacuated by the will of the predeceasing sister.
Perrett's Trustees v. Perrett, 1909 S. C. 522,considered and applied.
David Lister Shand, Writer to the Signet, died in 1895 leaving a trust disposition and settlement in which he directed his trustees on the death of his widow to divide the residue of his estate equally among his children who survived the age of twenty-five years. Four children reached the age of twenty-five and survived the widow, John, Angelica, Isobel and Margaret. Margaret died in 1909, unmarried and intestate, before the residue was divided, and John, Angelica and Isobel, her whole heirs in intestacy, agreed to divide her share equally between them.
Part of the residue consisted of two top flats in Pitt Street, Edinburgh, and by disposition dated June 1911 the sole surviving trustee, with consent of John, Angelica and Isobel, granted a disposition of these flats. The disposition narrated the relevant terms of the trust disposition and settlement, the death of the widow, the death of Margaret, and the decision of the surviving beneficiaries to divide the trust estate as at the date of Margaret's death, and continued:"And Whereas it has been arranged by the said Angelica Sarah Harvey Shand, Isobel Lister Shand and John Harvey Shand who are the whole representatives of the said Margaret Janet Blyth Shand that her share of the said Trust Estate shall be divided among them equally and Whereas part of the said Trust Estate consists of the subjects hereinafter disponed and I have been requested by the said Angelica Sarah Harvey Shand, Isobel Lister Shand and John Harvey Shand to grant the conveyance underwritten and that it is proper that I should do so: Therefore I the said Arthur Lewis Harvey as sole surviving Trustee foresaid with consent of the said Angelica Sarah Harvey Shand, Isobel Lister Shand, and John Harvey Shand for himself and for any interest he may have as heir-at-law of the said Margaret Janet Blyth Shand and We the said Angelica Harvey Shand, Isobel Lister Shand and John Harvey Shand for ourselves our whole right and interest; and We all with joint consent and assent do hereby dispone to and in favour of the said Angelica Sarah Harvey Shand, Isobel Lister Shand and John Harvey Shand jointly and the survivors and survivor of them and their heirs and assignees whomsoever heritably and irredeemably "
David Lister Shand's sister, Isabella, owned a second floor flat in Pitt Street, and in terms of her settlement her trustees in 1899 conveyed one half pro indiviso share to her sister, Mrs Russell, and the other half pro indiviso to John, Angelica, Isobel and Margaret. After Margaret's death John, as her heir-at-law and as an individual, Angelica and Isobel in August 1912 granted a disposition of theirpro indiviso share. The disposition narrated the death of Margaret intestate and the decree of general service in favour of John as her heir and continued:"Further Considering that I the said John Harvey Shand have agreed to collate with my sisters the said Miss Angelica Sarah Harvey Shand and the said Miss Isobel Lister Shand the heritage which falls to me as heir-at-law to the said Miss Margaret Janet Blyth Shand: Further Considering that we the said John Harvey Shand for my own interest as an individual, and also for my interest as heir-at-law of the said Miss Margaret Janet Blyth Shand, and the said Miss Angelica Sarah Harvey Shand, and the said Miss Isobel Lister Shand are all heritable proprietors equally among us of the subjects and others hereinafter disponed and that it has been decided to execute the following disposition of the said subjects: Therefore wevidelicet I the said John Harvey Shand as heir-at-law aforesaid of the late Miss Margaret Janet Blyth Shand and I the said John Harvey Shand as an individual, and I the said Miss Angelica Sarah Harvey Shand and I the said Miss Isobel Lister Shand and we all with joint consent and assent Do hereby dispone to and in favour of ourselves the said Miss Angelica Sarah Harvey Shand, the said Miss Isobel Lister Shand and the said John Harvey Shand as an individual jointly and the survivors and survivor of us and our heirs and assignees whomsoever heritably and irredeemably all and whole the just and equal one half pro indiviso part or share of "
On Mrs Russell's death her pro indiviso share passed to her son, Robert Russell, who in 1934 sold it to John, Angelica and Isobel. The material part of the disposition was in these terms:"I, Robert Russell, (designed), heritable proprietor of the subjects hereinafter disponed, in consideration of the sum of two hundred and fifty pounds sterling paid to me by Miss Angelica Sarah Harvey Shand, Miss Isobel Lister Shand, and John Harvey Shand, Writer to the Signet, all residing at Number Thirty eight Northumberland Street, Edinburgh, of which I acknowledge the receipt, have sold and hereby dispone to the said Angelica Sarah Harvey Shand, Isobel Lister Shand and John Harvey Shand, jointly and the survivors and survivor of them heritably and irredeemably all and whole my just and equal one half pro indiviso part or share of all and whole that lodging or dwellinghouse "
John died unmarried and intestate in 1942, and it was agreed that his interest in all the subjects passed to Angelica and Isobel.
Angelica died in 1954, and by her trust disposition and settlement dated in 1947 she conveyed to her 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 and all means and estate of which I may at my death have the power of disposal or appointment." She then directed (in the second place): "In the event of my sister, the said Isobel Lister Shand surviving me, my Trustees shall allow her the liferent of the residue of the Trust Estate during her lifetime after my death." By subsequent purposes of the said trust disposition and settlement she provided for the disposal of the trust estate upon the death of Isobel.
Isobel died in 1963, leaving a trust disposition and settlement...
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