Thomson's Trustees v Lockhart
| Jurisdiction | Scotland |
| Judgment Date | 18 March 1930 |
| Docket Number | No. 92. |
| Date | 18 March 1930 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Succession—Legacy—Ademption of specific legacy—Mutual settlement—Power of survivor to revoke—Mutual trust-disposition and settlement by two sisters—Liferent of whole of predeceaser's estate to survivor—Bequest of heritable property, owned pro indiviso by the sisters, on death of survivor to nephew—Heritable property sold after death of one sister—Rights of nephew in regard to proceeds after death of survivor.
Two sisters executed a mutual trust-disposition and settlement, by which, after providing that the survivor should enjoy the liferent of the predeceaser's estate, they gave certain directions for the disposal of their combined estates upon the survivor's death, including a direction to make over to a nephew certain heritable property held by them in equal shares pro indiviso. The mutual settlement also contained a declaration that the survivor should be entitled by any testamentary writing under her hand to revoke the provisions of the settlement in regard to residue.
After the death of one of the sisters it became expedient to sell the heritable property, and this was done with the approval of the surviving sister and the trustees acting under the settlement. On the death of the surviving sister a question arose as to the nephew's rights in regard to the proceeds.
Held that, as the predeceasing sister's share of the property passed on her death to the trustees to be held for behoof of the nephew, the sale of the property thereafter could not defeat the bequest in his favour quoad that share; but that, as the surviving sister's share would have passed to the trustees only upon her own death, the sale of it by her during her life operated ademption of the bequestquoad her share.
Opinions, per the Lord President and Lord Blackburn, that the mutual settlement was contractual in character.
Miss Christina Thomson, who died in 1916, and her sister Miss Mary Thomson, who died in 1928, executed a mutual trust-disposition and settlement, by the second purpose of which it was provided that, in the event of Christina predeceasing her sister, the latter was to enjoy,inter alia, a liferent of Christina's estate. There was a similar provision in the event of Mary predeceasing. By the third purpose, the testatrices provided for certain specific bequests out of their combined means and estate, to take effect upon the death of the longer liver, among which was the following:—"We direct and instruct our trustees to convey and make over to our said nephew Alexander Lockhart the property at Baillieston belonging to us." The property at Baillieston was held by the testatrices in equal sharespro indiviso. By the last purpose, the testatrices provided for the disposal of the residue of their combined means and estate.
The mutual trust-disposition and settlement also contained the following declarations:—"Declaring however and notwithstanding any law or custom to the contrary that the survivor of us shall be entitled by any testamentary writing under her hand to alter vary or revoke the provisions of these presents in regard to residue and to substitute any testamentary provisions as to her shall seem proper to come in lieu of the same.… And we reserve our own liferent use and enjoyment of the premises with full power and liberty at any time during our joint lives to revoke burden qualify and explain or in any way to alter these presents at pleasure; And we dispense with delivery hereof and declare that so far as unaltered though found lying by us or in the custody of any person undelivered at the time of our deaths [sic] shall have the full force and power of a delivered evident any rule or custom to the contrary notwithstanding." Neither testatrix left any testamentary writing under her hand other than the mutual settlement.
In 1921 the surviving testatrix and the trustees were advised that it was probable that the Public Health Authorities of the County of Lanark would call upon them, as proprietors of the Baillieston property, to execute extensive alterations and repairs, and they were further advised to sell the property, as its age and condition would not justify the heavy capital expenditure which would be necessary to meet the probable requirements of the Public Health Authorities. The surviving testatrix was also desirous, in any event, of realising her pro indivisohalf of the Baillieston...
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