Watson's Trustees v Hamilton
| Jurisdiction | Scotland |
| Judgment Date | 31 January 1894 |
| Docket Number | No. 88. |
| Date | 31 January 1894 |
| Court | Court of Session |
Lord Low, Lord Young, Lord Rutherfurd Clark, Lord Trayner.
SuccessionVestingSubstitution.
A testator by holograph settlement left the liferent of his whole estates, heritable and moveable, to his widow. He then disposed of the fee of his estates, and, inter alia, provided, I leave to my nephew J. F. W. my estate of B, but I wish it expressly understood that in the event of my said nephew dying without leaving any lawful heir-male of his body, then and in that event my said lands of B are to revert back to my nephew J. H.
J. F. W. survived the testator, but predeceased the testator's widow unmarried, and was survived by J. H. J. F. W. left a general trust-disposition and settlement of his whole estates, heritable and moveable.
In a question between J. F. W.'s trustees and J. H., held (diss. Lord Young) that the fee of the lands of B vested in J. F. W. at the testator's death, subject to a simple substitution in favour of J. H., in the event of J. F. W. dying without leaving an heir-male of his body, which substitution had been evacuated by J. F. W.'s general disposition.
Walter Whyte, of Bankhead, died on 16th September 1880, leaving the following holograph writing, which was held to be testamentaryHamilton v. Whyte, July 13, 1881, 8 R. 940, aff. June 15, 1882, 9 R. (H. L.) 53:
Bankhead 19 June 1873
Notes of intended Settlement by Walter Whyte of Bankhead.
firstI liferent my wife Mrs Margaret Pollok or Whyte, in my whole estate both Heritable & Moveable burdened with an Annuity of 300 Stg Three hundred pounds sterling a year to my Sister Mrs Jane Macknish Whyte or Hamilton Widow of the late James Hamilton Writer in Glasgow should my wife survive meat the death of my Wife said Annuity to cease, In place thereof I leave to my said Sister Mrs Jane Macknish Whyte or Hamilton in liferent only and to my nephew John Hamilton Writer in Glasgow in fee my pro indiviso half of the lands of Kenmuir situated in the parish of Old Monkland & County of Lanark, likewise my pro indiviso half of the lands of Shettleston situated in the Barony parish of Glasgow & said County of LanarkTo my nephew James Hamilton I leave my lands of Cuthill & Newmill of Briech &c. situated in the parish of Whitburn & County of Linlithgow subject to the liferent of his mother the said Mrs Jane Macknish Whyte or Hamilton I also leave to my nephew James Frances Watson presently residing at Ardmore House in the Parish of Caddross Dumbartonshire, my Estate of Bankhead situated in the parish of Rutherglen and County of Lanark, but I wish it expressly understood that in the event of my said Nephew James Frances Watson dieing without leaving any lawful male heir of his bodyThen & in that event my said lands of Bankhead are to revert back to my said nephew John Hamilton, my Moveable Estate at the death of my said wife is to be equally divided between, &c.
Mrs Whyte, the testator's widow, died on 20th September 1892, predeceased by his nephew James Francis Watson, who died unmarried on 3d April 1883, leaving a trust-disposition and settlement, dated 14th September 1870, by which he conveyed to trustees, as trustees for the ends, uses, and purposes therein mentioned:All and Sundry the whole means and estate, heritable and moveable, real and personal, of every kind and description, and wheresoever situate, at present belonging or that may belong to me at the time of my decease, including also all means and estate over which I have the power of testing and disposal, together with the writs and vouchers of the same, and all action, diligence, and execution competent to follow thereupon.
On 1st March 1893 James Francis Watson's trustees raised an action against John Andrew Hamilton [designed John Hamilton in the settlement], of which the leading conclusion was for declarator that the lands of Bankhead were vested in the said James Francis Watson in fee, absolutely and without restriction or limitation, except a liferent in favour of the testator's widow, Mrs Margaret Pollok or Whyte, and were validly and effectually conveyed to and vested in the pursuers as trustees of the said James Francis Watson, by the general conveyance or disposition in their favour contained in his foresaid trust-disposition and settlement, dated and recorded as aforesaid, for the ends, uses, and purposes therein set forth: And it ought and should be found and declared, by decree foresaid, that the destination in favour of the defender contained in the foresaid settlement of the said Walter Whyte of his estate of Bankhead, including therein the whole of the subjects before described, in the event of the said James Francis Watson dying without leaving any lawful male heir of his body, was, and has been, evacuated by the conveyance or disposition in favour of the pursuers contained in the foresaid trust-disposition and settlement of the said James Francis Watson, and that the defender has no right or title to or interest in the said estate of Bankhead. There were also conclusions for reduction of two notarial instruments with reference to the lands of Bankhead, and of a decree of general service as heir of provision to James Francis Watson, expede by the defender, but as it was admitted that if decree of declarator were granted, decree in terms of the reductive conclusions followed as a matter of course, the latter need not be further noticed.
The defender lodged preliminary defences, and a record was made up.
The pursuers pleaded;(1) By the terms of the late Mr Whyte's settlement the fee of the estate of Bankhead having vested in his nephew James Francis Watson, and having been conveyed by Mr Watson to the trustees in his trust-disposition and settlement, the pursuers are entitled to decree of declarator as concluded for. (2) The destination of the estate of Bankhead in the said Walter Whyte's settlement in favour of the defender having been evacuated by the conveyance to his trustees in the trust-disposition and settlement of the said James Francis Watson, the pursuers are entitled to declarator to that effect as craved.
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Robertson v Hay-Boyd
...to so hold by the opinions expressed by two distinguished Scottish Judges, Lord Low and Lord Rutherfurd Clark in ( Watson v. Hamilton 21 R., 451). It is not necessary to consider here whether there can be any valid clause of return in a mortis causadeed where the granter is dead before the ......