Scottish Court of Session Decisions

This Special Case set forth the following facts:—Misses Margaret, Elizabeth, Marianne, Henrietta, Jane, and Helen Robertson were proprietors of a house in George Square, Edinburgh. By mutual general disposition, dated 11th July 1833, the said Misses Robertson mutually gave, granted, assigned, and disponed to themselves, and the survivor or survivors of them, who should be alive at the time of their respective deaths, equally among them, or the survivors or survivor of them as aforesaid, the whole heritable and moveable estate belonging to them respectively. Miss Margaret Robertson died in 1839, and by disposition, dated the 23d October 1845, recorded in the Books of Council and Session the 13th February 1864, the five survivors, on the narrative therein contained, and, inter alia, on the narrative of their love, favour, and affection for their niece Mrs Helen Hamilton Chancellor, and her daughters Mary Forbes Chancellor and Helen Barbara Chancellor, and of their being anxious that the said tenement in George Square, and all its pertinents, should, after the decease of the longest liver of them (the disponers), belong to the said Helen Hamilton Chancellor for her life, and at her decease in fee to her unmarried daughter or daughters, and if both her said daughters Mary Forbes Chancellor and Helen Barbara Chancellor should marry, then to be sold, and the proceeds to be equally divided between them, or in any other way they might decide upon, therefore they gave, granted, alienated, and disponed to and in favour of the said Helen Hamilton Chancellor, Mary Forbes Chancellor, and Helen Barbara Chancellor, or the survivors or survivor of them, all their said property and respective shares in the said tenement No. 46 George Square, with all parts and pertinents thereunto belonging, heritably and irredeemably, but reserving always to themselves, separately and collectively, their liferent interest therein. Miss Elizabeth Robertson died on 25th February 1858. She was the first of the granters of the said last-mentioned disposition who died. Miss Marianne Robertson, the longest liver of the granters of the said last-mentioned disposition, died on or about the 3d day of February 1864. The said Mrs Helen Hamilton Chancellor was a niece of the said Misses Robertson, being the daughter and only child of their brother Hugh Robertson, clerk to the signet. She had, besides her two daughters Miss Mary and Miss Helen Chancellor, several sons, the eldest of whom was John George Chancellor. The said Mary Forbes Chancellor and Helen Barbara Chancellor were both married before the death of the said Miss Marianne Robertson, the longest

Page: 647↓

liver of the granters of the said disposition. The said Mary Forbes Chancellor was married to Colonel George Chancellor Collyer, Madras Engineers (now Royal Engineers), in 1846, and or about the 21st day of May 1848, thereby predeceasing all the said granters. She left an only child (a daughter), named Mary Catharine Bedingfield Collyer, now married to Colonel John Heron Maxwell Shaw Stewart. The said Helen Barbara Chancellor was married in 1858 to Hugh Mosman, Esq., of Auchtyfardle. She survived all the Misses Robertson, and died in 1866, leaving five children, of whom Hugh Mosman junior, a pupil, is the eldest son, and his mother's heir-at-law. The said Mrs Helen Hamilton Chancellor survived all the said Misses Robertson, and both her own daughters, and died on the 17th day of March 1872.

Under these circumstances three parties claimed a right in the house in George Square. First, Mr John George Chancellor, the eldest son of the said Mrs Helen Hamilton Chancellor. Second, Mr Hugh Mosman. the surviving husband of Miss Helen Chancellor, as tutor and administrator-in-law for his son, Hugh Mosman junior. Third, Mrs Stewart, only child of Mrs Mary Forbes Chancellor or Collyer.

It was contended for the first party, that, according to a sound construction of the disposition of 1845, the share of the tenement in question which would have fallen to Mary Forbes Chancellor (Mrs Collyer), if she had survived the granters thereof, lapsed by her having predeceased them; that Mrs Shaw Stewart was not entitled to the share which her mother would have taken if she had survived the granters; that on the death of the longest liver of the granters on the 3d day of February 1864, an immediate fee in one-half of the property vested; in each of the two disponees then in life (viz., Mrs Chancellor and Mrs Mosman) with an eventual fee in the whole to the longest liver, and that accordingly, on the 30th day of July 1866, the day of Mrs Mosman's death, the right to the fee of the whole property became vested in Mrs Chancellor as the longest liver jure accrescendi, and without the necessity of service; and that the first party, as her heir at law, was thus entitled to succeed to that fee; or otherwise that, on the death of the last Miss Robertson in 1864, a right to the fee of one half of the said property vested in Mrs Chancellor, and belonged to the said first party as heir at law.

It was contended for the second party, that, on a sound construction of the disposition of 1845, a liferent only of the subjects in question was intended to be given, or was given, to Mrs Chancellor; and that on the death of the longest liver of the granters, a right to the fee of the subjects vested in Mrs Mosman, subject to the liferent of her mother, Mrs Chancellor; that on the death of Mrs Mosman, on 31st July 1866, the right to the fee transmitted to Hugh Mosman junior, her eldest son and heir in heritage; or otherwise that, on the death of the longest liver of the granters, a right to the fee of one-half of the said subjects vested in Mrs Mosman, and on her death transmitted to Hugh Mosman junior, her son and heir in heritage as aforesaid.

It was contended for the third parties, that a liferent only was given to Mrs Chancellor, and that Mrs Shaw Stewart, as representing her mother, Mrs Collyer, or otherwise in her own right, as only child of Mrs Collyer, and great grandneice of the makers of the deed, was entitled to one-half of the price of the subjects.

The following questions of law were submitted for the opinion and judgment of the Court:—

“1. Whether, on the death of the last of the granters of the disposition of 1845, Mrs Shaw Stewart, as representing her mother, the deceased Mary Forbes Chancellor or Collyer, or otherwise in her own right, became entitled to a share of the fee of the subjects thereby disponed?

2. Whether, on the death of the last of the granters of the aforesaid disposition, a right to a liferent of the said subjects vested in Mrs Chancellor, and a right to the fee thereof in Mrs Shaw Stewart and Mrs Mosman equally, or wholly in Mrs Mosman?

3. Whether, on the death of the last of the granters as aforesaid, a right to a fee of the said subjects vested in equal pro indiviso shares on Mrs Chancellor, Mrs Shaw Stewart, and Mrs Mosman, or only in Mrs Chancellor and Mrs Mosman; and whether the said first parties to this case, as representing Mrs Chancellor, are now in right of the fee of the whole of the said subjects; or whether all of the parties to this case, or the first and second parties only, are in right of equal pro indiviso shares of the said subjects?”

Marshall, for the first party, cited Ersk. iii, 8, 35; Bisset v. Walker, Nov. 26, 1799.

Adam, for the second party, cited Mearns v. Mearns, July 27, 1775, M. 13,050; Hamilton v. Hamilton, Feb. 8, 1837, 16 S. 478; Aitken's Trustees v. Wright, Dec. 22, 1871, 10 Macph. 278; Mcall v. Denistoun, Dec. 22, 1871, 10 Macph. 281.

Fraser, for the third party, argued that the condition si sine liberis decesserit applied in this case, and cited Sutherland v. Sinclair, 1 Ross' Leading Cases, p. 45; Douglas v. Scott § Yorke, Dec. 17, 1869, 8 Macph. 360; Thomson's Trs. v. Robb, July 10, 1851, 13 D. 1326.

At advising—