Urquhart v Dewar
| Jurisdiction | Scotland |
| Judgment Date | 13 June 1879 |
| Date | 13 June 1879 |
| Docket Number | No. 149. |
| Court | Court of Session |
Ld. Curriehill M, Lord President, Lord Deas, Lord Mure, Lord Shand.
Succession—Words importing a bequest of heritage—Titles to Land Consolidation Act, 1868, 31 and, 32 Vict. c. 101, sec. 20.—
A testator died in 1877, leaving a holograph will in which he appointed his nephew A to be his ‘executor,’ with power to him to assume other executors if he should see fit. After a direction to pay the testator's debts, and legacies of £500 to each of the children of his sister (one of whom was his heir-at-law), the will bore, ‘the residue of my estate shall be divided equally’ among the children of the testator's half-brother (his executor being one). He then recommended, as his business of provision curing was profitable, that a person should be appointed to assist B, his manager, ‘provided the following arrangement be carried out’—B to have half the profits after deducting interest on capital at 4 per cent, ‘the other half of the business to belong to A, my nephew and trustee.’ In the event of A not wishing to connect himself with the business, B shall be allowed to continue the business and to pay up the capital, with interest, by annual instalments. An additional share of residue was then given to A on account of the trouble he would have ‘as trustee.’
The testator left £12,000 of moveable property, besides his manufacturing premises, valued at £1500, and other heritable property.
In an action of declarator brought by A against the testator's heir-at-law, held (diss. Lord Mure, rev. judgment of Lord Curriehill), that the terms of the will did not express or imply an intention on the part of the testator to affect thereby the succession to his heritable property, and therefore that it was not conveyed by it.
Observations on sec. 20 of the Titles to Land Consolidation Act, 1868, in regard to the words sufficient to imply a bequest of heritage or a general disposition.
Robert Urquhart, sole partner of the firm of Marshall & Co., provision curers, Aberdeen, died on 8th November 1877. He left the following holograph will:—‘Aberdeen, 13th April 1876.—This morning I have received a telegram intimating the sudden death of my only surviving brother James, and before leaving for London I desire to appoint my nephew, Dr John Urquhart, my executor, considering it fitting to do so from my being so long and almost exclusively connected with his father and his family, but with power to him (Dr Urquhart) to assume such other executor or executors as he may consider fit, and instruct that, after paying all my lawful debts, £500 to each of the surviving children of my sister Jessy (Mrs Dewar), and making provision for the payment of £100 a-year to Mrs Urquhart, the widow of my now deceased brother James, during her life, and £20 a-year during her life to my faithful and kind friend Bell Brewster, the residue of my estate shall be divided equally among the surviving children of my late brother John, or if any of them should predecease me and leave a family their share shall go to their family, and payment shall be made as after directed. As the business of Marshall & Company has been paying about £1500 a-year for some years it is recommended that a thoroughly competent business man be put into it to assist Mr Ledingham in the management of it, provided the following arrangement is carried out:—In consideration of Mr Ledingham's faithful and devoted services to me for so many years, for which I feel deep gratitude to him, I desire that he shall not have less than one half share of the profits, after deducting interest of capital at 4 per cent, and the usual expenses of management, and he shall have also £200 a-year as salary, which shall be a part of the expenses of management to be deducted from the profits before division; the other half of the business to belong to my nephew and trustee, Dr John Urquhart.
‘In the event of Dr Urquhart not wishing to connect himself with the business Mr Ledingham shall be allowed to continue the business, either by himself or by assuming a partner or partners, and to pay up the capital annually at the rate of not less than £1500 a-year, with interest on said capital of not more than 41/2 per cent per annum, in the event of Mr Ledingham getting security for the due payment of the instalments to the satisfaction of Dr Urquhart, my trustee; and it is specially conditioned that he shall not be responsible to any of the legatees for any failure of the security or of Mr Ledingham to pay said instalments. The legacies to my sister Jessy's children shall be paid first in full when funds are realised sufficient for the purpose, and the residuary legatees shall only be entitled to receive payment from year to year as the funds come in. In consideration of the trouble Dr Urquhart will have as trustee I so far alter the foregoing provisions as to an equal division of the residue, and provide that he shall have double the share of his sisters. All debts due to me by William Dewar, my brother-in-law, to be considered cancelled, and are hereby cancelled.’
Dr John Urquhart (who was the son of the testator's half-brother) raised this action, as sole trustee and executor, against William Dewar, the heir-at-law of the testator, and son of his sister, Mrs Dewar, concluding for declarator that the will contained a general conveyance, not only of the moveable, but of the heritable property of the testator.
It was admitted that the testator's moveable estate was worth about £12,000, exclusive of his provision curing premises, valued at £1500. He also was proprietor of a dwelling-house, also worth £1500, but considerably burdened with debt. There were also other premises, valued at £1800, the testator's right to which was in dispute. The balance-sheets of the testator's business were produced, from which it appeared that he treated sums expended on new manufacturing buildings, amounting in all to about £1500, as an asset of the company.
The Lord Ordinary decerned and declared in terms of the conclusions of the summons.*
The defender reclaimed.
Argued for him;—Admittedly the heritage would not have been conveyed
but for the 20th section of the Titles to Land Consolidation Act, 1868.1 But it was necessary that the mortis causa deed should contain
words with reference to the lands, which would have given an executor a right to moveables. Several cases had occurred under the statute, but it had never been held to apply in a case where, as in this will, the lands were not mentioned.1 The use of the word ‘trustee’ did not alter the pursuer's position as executor, because an executor was a trustee.2
Argued for the pursuer;—The scheme of the deed did not lead to the conclusion that the testator intended to leave part of his succession to the operation of law, while he disposed of the other part. The words ‘trustee’ and ‘executor’ seemed to be used interchangeably. The heir-at-law was provided for. The word ‘estate’ naturally included both heritage and moveables.3
Lord President.—The question in this case is, whether the will of Robert Urquhart, dated April 13, 1876, is sufficient to convey his heritable as well as his moveable property under the 20th section of the Titles to Land Consolidation Act, 1868. Various cases under this section have come before the Court, and I think that not only are they reconcilable but harmonious. It seems to have been thought that some expressions made use of by myself and Lord Deas in the case of Edmond led to a different construction of the statute from the general tendency of the construction given in the opinions of other Judges. I think that this is not so, and the idea has arisen from the expressions not being rightly understood. The clause provides in its first part that lands may be conveyed by mortis causa deeds without the use of technical words, and especially without the use of the word ‘dispone.’ In its second part it provides that ‘where such deed or writing shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain with reference to such lands any word or words which would, if used in a will or testament with reference to moveables, be sufficient to confer upon the executor of the granter, or upon the grantee or legatee of such moveables, a right to claim and receive the same, such deed or writing, if duly executed in the manner required or permitted in the case of any testamentary writing by the law of Scotland, shall be deemed and taken to be equivalent to a general disposition of such lands within the meaning of the 19th section,’ &c. Now, the question under this latter branch will always be, Does the deed contain a ‘word or words’ having reference to lands sufficient to express the intention of the testator to pass his heritage by his will? If there be such, either when taken by themselves or in connection with the rest of the will, then I think the lands will be effectively conveyed. When I say this, I do not mean that a ‘word or words’ (to quote the statute) which necessarily import a
conveyance or gift of lands must be used, but any ‘word or words’ which sufficiently explain the meaning of the testator that the lands shall pass. This intention may be implied from the language used, and there can be no better illustration of what I mean than the words which occur in the case of M'Leod. There the words are a direction to ‘realise all my heritable and moveable property when they see fit,’ and this was held to clearly imply an intention to make a conveyance of lands as well as moveables. I only further desire to add, by way of caution, that, of course, words conveying moveables are not sufficient to convey heritable property unless the wish is clearly implied in the language. They must be words importing that heritable property is meant to be conveyed as well as moveable, or that the whole estate is to be conveyed without distinguishing between...
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