Smith's Executors v Smith
| Jurisdiction | Scotland |
| Judgment Date | 29 June 1918 |
| Date | 29 June 1918 |
| Docket Number | No. 75. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Dundas, Lord Salvesen, Lord Guthrie.
SuccessionTestamentSubject of giftWords importing gift of heritageTitles to Land Consolidation (Scotland) Act, 1868 (31 and 32 Vict. cap. 101), secs. 20 and 21.
A testatrix by a holograph document described as her last will and testament appointed executors to whom she gave legacies. She then instructed them to distribute the rest of my estate after payment of funeral expenses and debts by the payment of a number of legacies, providing that, if the money left by her was insufficient to meet the legacies, the legacies should be reduced proportionately. After disposing of books, furniture, and other articles, she concluded, I desire the residue of my estate, if any, to be divided into six equal parts, one part to go to each of six funds connected with the United Free Church.
The testatrix left moveable property amounting to 2949, which was more than sufficient to meet all the legacies. She also left heritable estate consisting of two dwelling-houses of the value of 300 and 190 respectively.
Held (diss. Lord Salvesen) that the testatrix intended to deal with, and had effectually dealt with, her whole property, both heritable and moveable.
Urquhart v. DewarSC, (1879) 6 R. 1026, distinguished.
On 14th May 1918 a special case was presented for the determination of certain questions arising out of the holograph will dated 16th February 1916, and two holograph codicils dated respectively 15th April 1916 and 12th November 1917, of Miss Emma Isabella Smith, 35 Marchmont Crescent, Edinburgh.
The parties to the case were(1) Miss Smith's executors, first parties; (2) Henry Watson Smith, her heir-at-law, second party; and (3) the United Free Church of Scotland and the Minister and Deacons' Court of St Paul's United Free Church congregation, Edinburgh, third parties.
The will was in the following terms:
I Emma Isabella Smith, spinster, of 35 Marchmont Crescent, Edinburgh, make this my last will and testament on this the sixteenth day of February, in the year Nineteen hundred and sixteen. I hereby revoke all former wills (16th February 1916).
I appoint the following as executors of my will [here followed the names of three persons] and I give to each of these three executors who shall accept office the sum of Fifty pounds (50). I desire them to distribute the rest of my estate, after payment of funeral expenses and debts, as follows[Here followed a list of legacies of different sums of money to persons and institutions, amounting in all to 1150].
I desire my executors to pay all legacies free of legacy duty, and if the money left by me is not sufficient to pay all these legacies, to reduce the amount of each proportionately.[Then followed explanatory notes with regard to the legacies, and also bequests of certain corporeal moveables, including all the furniture in the house.]
I desire the residue of my estate, if any, to be divided into six equal parts, viz.:
One-sixth to the Central Fund of the United Free Church of Scotland.
One-sixth to the Foreign Mission Fund of United Free Church.
One-sixth to the Women's Foreign Mission Fund of United Free Church.
One-sixth to the Home Mission Fund of United Free Church.
One-sixth to the Jewish Mission Fund of United Free Church.
One-sixth to the Minister and Deacons' Court of St Paul's United Free Church Congregation, Edinburgh, to be used for the poor, or as they think best.
Written and signed by my own hand this sixteenth day of February, Nineteen hundred and sixteen (16th February 1916).
Emma Isabella Smith.
By the codicil of 15th April 1916 the testatrix made an addition to one of the legacies already given.
By the codicil of 12th November 1917 the testatrix bequeathed a further legacy, increased the amount of a legacy already given, and then provided: I have left the furniture to my cousin Mrs Harriet Simpson or Gordon, wife of Alex. R. Gordon, now residing at 77 Albert Drive, Crosshill, Glasgow, and I mean that to include all contents of the furniture and personal belongings (as clothes, jewellery, &c.) not otherwise bequeathed. If the estate admits of it, without diminishing other legacies, I leave her an additional One hundred pounds (100), making 300 (Three hundred pounds in all).
The case contained the following statement:The deceased left moveable estate amounting to 2949, 9s. 2d., and after payment of debts, Government duties and expenses, the balance was estimated to be more than sufficient to meet all the legacies left under her testamentary writings. The deceased also left heritable estate consisting of two houses, one at 35 Marchmont Crescent, Edinburgh, of the estimated value of 300 or thereby, and the other at 29 Lutton Place, Edinburgh, of the estimated value of 190 or thereby. No express conveyance of, or reference to, the deceased's heritable estate was contained in her testamentary writings.
It was stated at the bar that the total amount of the pecuniary legacies was 1460.
The question between the parties was whether the heritage belonging to the testatrix was conveyed by her testamentary writings, the heir-at-law maintaining that it was not, while the residuary legatees maintained the contrary.
The questions of law were as follows:1. Are the testamentary writings of the deceased habile to convey her heritage thereunder to the extent and effect of vesting the same in the first parties for the purposes contained in the said writings? or, 2. Did the deceased die intestate quoad her heritage?
The case was heard before the Second Division on 22d June 1918.
Argued for the second party;The terms of the testamentary writings demonstrated that the testatrix was not certain that she had enough money to pay the legacies, and there would have been no ground for this doubt if she had intended to include the heritage. As a matter of fact, however, all the legacies could be paid without encroaching upon the heritage. A last will and testament was appropriate to the disposal of moveable estate, and not to the disposal of heritage; and here there were no words of conveyance of the heritage, but merely an appointment of executors. They were appointed to distribute the estate, but executors could not distribute heritage which was not conveyed to them. They were not appointed trustees. There was no direction to realise the whole estate, and there were no words from which such an intention could be inferred, e.g., the presence of words giving power to sell heritage. The word money, although it had been held to cover all moveable estate, was not wide enough to cover heritage.1 The testatrix had provided her own dictionary, and used the words estate and money as synonymous. At common law a mortis causa deed would not convey land, and under the Titles to Land Consolidation (Scotland) Act, 1868,2 and the Conveyancing (Scotland) Act, 1874,3 words had to be used purporting to convey or bequeath land, and such words were not present here. It was not the intention of the Legislature that a will of moveable estate should take effect as a disposition of heritage.4 The word estate was used by the testatrix only when instructing distribution, and such use of it was not' habile, especially where there was no power of sale, to express an intention to convey an estate of two houses which could not be divided into six parts. Counsel examined and contrasted the cases undernoted.5
Argued for the third parties;The intention of a testator was to be gathered from the whole terms of the will, and a provision which was ambiguous might become clear from the terms of another part of the will. Before the Titles to Land Consolidation (Scotland) Act, 1868,2 persons were presumed to know that to enable them to...
To continue reading
Request your trial
-
Woodard's Judicial Factor v Woodard
...Act, 1868 (31 and 32 Vict. cap. 101), sec. 20. 1 Crowe v. Cook, 1908 S. C. 1178, Lord Kinnear, at p. 1184; Smith's Executors v. Smith, 1918 S. C. 772; Jack's Executor v. Downie, 1908 S. C. 718, Lord Kinnear, at p. 721; Copland's Executors v. Milne, 1908 S. C. 2 1908 S. C. 718. 3 1908 S. C. ......
-
Craw's Trustees v Blacklock
...1 M'Laren on Wills and Succession, (3rd ed.) vol. i., p. 333. 2 Oag's Curator v. CornerSC, (1885) 12 R. 1162; Smith's Executors v. Smith, 1918 S. C. 772. 3 (1879) 6 R. 4 1913 S. C. 209. 5 1919 S. C. 350. 6 12 R. 1162. 7 Bell v. BellUNK, (1906) 14 S. L. T. 244, per Lord Ardwall, at p. 246. 8......
-
Simson's Trustees v Simson
...question. 1 Dunlop v. M'CrorieUNK, 1909, 1 S. L. T. 544; Macintyre v. MillerUNK, (1900) 7 S. L. T. 435; Smith's Executors v. Smith, 1918 S. C. 772. 2 Easson v. Thomson's TrusteesSC, (1879) 7 R. 251, Lord Ormidale, at p. 3 Scott's Trustees v. Duke, 1916 S. C. 732. 4 Easson v. Thomson's Trust......