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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Kirkpatrick v. Kirkpatrick's Trustees [1874] UKHL 717 (23 June 1874) URL: http://www.bailii.org/uk/cases/UKHL/1874/11SLR0717.html Cite as: [1874] UKHL 717, 11 ScotLR 717 |
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Page: 717↓
(Before
(Supra, vol. x. p. 363.)
Subject_Property — Disposition.
Succession—Revocation.
Facts:
Held (aff. judgment of the Court of Session) that a mortis causa conveyance of heritage executed by a person who died prior to the Titles to Land Consolidation Act 1868 (31 and 32 Vict. cap. 101) was invalid in respect that the word “dispone” was not used.
Held (rev. judgment of the Court of Session) that a revocable deed conveying the granter's whole estate, heritable and moveable, was not revoked by a subsequent deed by necessary implication, the new deed containing no express revocation, and owing to the omission of the word “dispone” being found ineffectual as a conveyance of heritage, while the former deed was effectual in all respects.
The late Mr and Mrs Kirkpatrick, having eight daughters and one son, executed on the 18th June 1866 a deed whereby they conveyed and “disponed” to themselves, as husband and wife, and their survivor, all their property, heritable and moveable. The deed contained provisions for the daughters, but was silent as to the son.
Nine months afterwards, on March 4, 1867, Mr and Mrs Kirkpatrick executed a second deed, “giving, granting, and assigning,” but not disponing, to trustees the property in question. This second deed made no reference to the first, but inasmuch as its provisions departed from those of the first deed, showing an intention to displace the first and substitute the second. The Court of Session decided that the first deed was in effect revoked and inoperative, thereby neutralizing both deeds as regarded heritage (the second being inoperative as a conveyance of heritage) and opening the succession to the son as heir-at-law.
The trustees appealed.
In delivering judgment—
The
Page: 718↓
Reversed.
Counsel for Appellants— Pearson, Q. C., and Balfour. Agents— Loch & Maclaurin.
Counsel for Respondents— Attorney General (Sir R. Baggallay) and M'Laren. Agents— Martin & Leslie.