Wilson v Gibson
| Jurisdiction | Scotland |
| Judgment Date | 30 June 1840 |
| Docket Number | No. 227 |
| Date | 30 June 1840 |
| Year | 1840 |
| Court | Court of Session (Inner House - Second Division) |
Lord Cuninghame. F.
Succession—Provision—Testament.—
THE late John Dick, who was possessed of heritable and moveable property to a considerable amount, had by his first marriage two children, Janet (Mrs Gibson) and Agnes (Mrs Wilson.) In March 1832, he entered into a second marriage. In January previous he had executed a deed in favour of his youngest daughter Agues, then unmarried, conveying certain lands to her ‘in liferent, for her liferent use allenarly, and to the lawful heirs of her body; whom failing, to her nearest heirs whomsoever, in fee.’ It was declared by the deed, that Agnes Dick's liferent right and interest in the subjects was given exclusive of the jus mariti and right of administration of any husband she might marry; and it was also declared that it should be in the power of Agnes Dick, by a writing under her hand, to fix and determine the respective interests of her children in the fee of the subjects. And the deed further declared, ‘that the present conveyance in favour of my said daughter and her foresaids, &c., shall be accepted by them in full satisfaction of all legitim, portion-natural, bairns” part of gear, executry, or other claims whatsoever, which she or they can ask or demand through my death, or the death of my deceased wife, or in any other manner of way; and that in case recourse shall be had to any of the said claims, whether legal or conventional, the rights both of liferent and fee hereby granted shall fall and become null and void, without prejudice, however, to any additional provisions which I may hereafter voluntarily make, in favour of my said daughter, or her foresaids.’ The deed also contained clauses reserving the granter's liferent and power of revocation, as well as a power to sell or burden the lands. In July 1832, Mr Dick granted a conveyance of certain lands in favour of his eldest daughter, Mrs Gibson, ‘in liferent, for her liferent use allenarly, and to the heirs of her body by the marriage between her and the said John Gibson; whom failing, to the heirs of her body by any subsequent marriage, &c.; whom failing, to her nearest heirs whomsoever in fee.’ This deed, mutatis mutandis, was in all respects similar to the disposition in favour of Agnes Dick.
Part of the lands conveyed to Mrs Gibson were, in 1835, surrendered back by Dick to the party from whom he had purchased them, and he, in that year, granted a conveyance to Mrs Gibson, and her heirs and assignees whomsoever, of certain other lands, which deed contained an exclusion of the jus mariti, and the usual clauses reserving the granter's liferent, and for completing infeftment, &c., but did not contain the declarations above mentioned which occurred in the deeds of 1832. In 1837, Dick granted another disposition to Mrs Gibson in liferent, and to her children in fee, of his house and shop at Whitburn, containing the usual clauses.
Dick had no children by his second marriage. He died in 1837, leaving undelivered in his repositories the deeds which have been mentioned. He left some heritage not included in those deeds, and not disposed of in any other way. He also left moveable property, as to which he had made no testamentary settlement. His widow was provided for under the marriage-contract, and her legal claims discharged. Mrs Gibson and her sister, who, soon after Mr Dick's death, was married to William Wilson, were thus the only nearest of kin of their father.
Disputes having arisen as to their interest respectively in the succession, and various steps having been taken by Mrs Gibson with reference to what she conceived to be her rights therein, Mrs Wilson and her husband and infant child raised action against Mrs Gibson and her husband, setting forth the granting by Mr Dick of the deeds above-mentioned, and the proceedings had by Mrs Gibson subsequent to his death, and concluding (in the main conclusion) to have it found and declared, ‘that the said John Dick having died intestate as to the succession to his moveable means and estate, and the jus relictæ having been excluded in the contract of marriage between him and his second wife, the pursuer, Agnes Dick, as one of the only two children and nearest of kin of the said deceased John Dick, and the pursuer, William Finlay Wilson, her husband, for his interest, are entitled, ab intestato, to the one just and equal half of the said moveable means and estate, and that over and above, and without prejudice to her right to the liferent, or the right of her children to the fee, of the heritable subjects before-mentioned conveyed by the foresaid disposition granted by the said John Dick in her and their favour, dated the 11th day of January 1832; the defender, Janet Dick, as the only other child and nearest of kin of the said deceased, and the defender, John Gibson, her husband, for his interest, being entitled to the other half of the said moveable means and estate;’ And further, to have it found and declared, ‘that the pursuer, Agnes Dick, is entitled, and has good and undoubted right, as one of the two heiresses-portioners of the said deceased John Dick, her father, to one just and equal half, pro indiviso, of the whole lands and other heritable subjects and estate which belonged to him at the time of his death, and which were not Contained in, or disposed of, by any of the deeds before-mentioned, and to one-half of the rents, maills, and duties thereof, from and after the time of his death; the defender, Janet Dick, being entitled to the other half, pro indiviso, of such heritable subjects and estate, as the other heiress-portioner of the said John Dick.’1
In defence against this action it was inter alia pleaded;—
- 1. According to a sound construction of the deeds in question, and particularly with reference to the clause of the deed of January 1832 in favour of Mrs Wilson, declaring that that conveyance should be accepted in satisfaction of all...
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