Scottish Court of Session Decisions

By disposition, dated july 1851, Henry M'Dougall, portioner in Calton of Glasgow, in consideration of a price paid by Alexander Smith, portioner in Gorbals, disponed a piece of ground measuring 12 falls, part of the lands of Stirlingfold and Wellcroft, in

Page: 72↓

the parish of Gorbals, to and in favour of “the said Alexander Smith in liferent, for his liferent use only, and after his death to and in favour of the said Mrs Isabella Parlane or Miller in liferent, for her liferent use only, and to Jean Smith Miller, John Davis Miller, and Robert Lockhart Miller, her children, equally among them, and failing any of them without lawful issue, then to the survivors or survivor of them, and their, his, or her heirs, heritably and irredeemably, in fee.” The said disposition also contained the following declaration:—“But declaring, however, as it is hereby expressly provided and declared, that it shall be lawful to and in the power of the said Alexander Smith, by himself alone during his life, notwithstanding of the above destination, to sell, burden, or otherwise dispose of the said subjects, either onerously or gratuitously, as he may think proper; and also declaring that, in the event of the said Alexander Smith not exercising the above faculty, it shall be lawful to and in the power of the said Isabella Parlane or Miller, by herself alone, in like manner during her life, to sell, burden, or otherwise dispose, onerously or gratuitously, of the said subjects as she may think proper.” Sasine was expede in favour of the liferenters, and of the said Jean Smith Miller, John Davis Miller, and Robert Lockhart Miller in fee (the declaration above set forth being quoted in full), and the instrument was recorded 4th August 1851.

Alexander Smith died intestate, and without having exercised the power of disposal conferred on him by the disposition. He was survived by Mrs Miller.

Mrs Miller died on 1st June 1896, leaving a trust-disposition and settlement dated 1st April 1895, whereby she conveyed to trustees, for the purposes therein mentioned, her whole means and estate which should belong to her at her death, or of which she might then have the power of disposal in any manner of way.

A question arose as to whether Mrs Miller by her trust-disposition and settlement had validly exercised the power of disposal conferred upon her by the terms of the disposition. For the settlement of the point a special case was presented by (1) Mrs Miller's Trustees and (2) James Findlay, the eldest son and heir-at-law of the deceased Mrs Jean Smith Miller or Findlay, John Davis Miller, and Robert Lockhart Miller.

The questions of law were—“(1) Whether the said Mrs Isabella Parlane or Miller by her said trust-disposition and settlement validly exercised the power of disposal conferred upon her by the said disposition, and thereby conveyed the said heritable subjects to her testamentary trustees? or (2) Whether said heritable subjects now belong to the second parties in virtue of the destination thereof contained in the said disposition?”

Argued for the first parties—(1) Mrs Miller at the time of her death was the fiar in the heritable estate in question, and her trust-disposition therefore carried it. She was in the same position in terms of the disposition as Alexander Smith. If he was fiar, she also was fiar after his death. A liferent with reservation of disposal at pleasure had been held to be a fee— Bailie v. Clark, February 23, 1809, F.C.; M'Laren on Wills, 3rd ed., ii. p. 1088. It made no difference that in the present case Smith was nominally a liferenter by constitution, with a power of disposal. He, having paid the price, was practically in the position of a liferenter by reservation, and therefore of a fiar. Mrs Miller being placed by the deed in the same position as himself, was also a fiar. (2) Even if Mrs Miller was held to be only a liferentrix, she must be held to have exercised the power to dispose of the property under the deed. The exercise of such a power of disposal given to a liferenter was not inconsistent with the fee being in some one else—Stair, ii. 11, 7, and iii. 2, 9; Bell's Prin., sec. 929; Creditors of Mousewell v. His Children, January 6, 1677, M. 4102, and December 16, 1679, M. 4104; Anderson v. Young & Trotter, December 24, 1784, M. 4128; Pringle v. Pringle, July 18, 1890, 17 R., opinion of Lord Rutherfurd Clark, p. 1238. The power was one which she could exercise by a mortis causa deed—Sugden on Powers, 8th ed., 216, 217; Edwards v. Edwards, 1818, 3 Maddock, 197; 1821, Jacob's Chancery Reports, 335. In 1851 a trust-disposition took the form of an inter vivos deed. The term “during her life” in the clause granting the power applied to the date of the dispositive act. It also showed that the deed must be executed by Mrs Miller herself during her life—that she could not hand the power on to some-one else. The law of deathbed existed in 1851, so these words might also have been inserted to prevent any objection on the ground of deathbed to a trust-deed in which the power was exercised— Morris v. Tennant, June 7, 1853, 25 S.J. 432, aff. H. of L., July 6, 1855, 27 S.J. 546.

Argued for second parties—(1) The position of Smith need not be discussed; he was not in the case. As regards Mrs Miller, her case was distinguished from the case of Baillie in two essential particulars—(1st), her liferent was not one by reservation; (2nd) she had no absolute power of disposal. It required to be exercised “during her life,” and was therefore inconsistent with her being the full owner. Mrs Miller was not therefore the fiar. (2) The power of disposal given to Mrs Miller as liferentrix was not such as could be exercised by a testamentary deed. The words “during her life” had reference to effective action during her life; they indicated that the transaction must take effect during her life.—Sugden on Powers, 8th ed., 209, 210. To dispose of the estate by mortis causa deed was ultra vires of Mrs Miller— Sprot v. Pennycook, June 12, 1855, 17 D. 840.

At advising—