Scottish Court of Session Decisions

Thomas Beveridge, farmer at Craighead of Aldie, Kinross-shire, by assignation, executed on 6th March 1868, conveyed to his son, the defender, his lease of the farm, with the whole crop, stocking, household furniture, and other effects on the farm, being his whole means, estate, and effects, under burden of maintaining his father and mother and three unmarried sisters in a manner suitable to their station; also of paying certain legacies, among which were legacies of £1 each to the children of his first marriage, payable at the first term of Whitsunday or Martinmas after his death. The assignation was delivered to the defender on 23d March 1868. Thomas Beveridge, who was twice married, died on 8th June 1869, survived by four children of his first marriage, and by his second wife and nine children, the eldest of whom was defender in this action.

The assignation was verbally intimated to the factor on the property at Lammas 1868, and by letter to a new factor in April 1869, and they recognised the defender as tenant.

The present action was brought by James Skinner, who married Isabel Beveridge, a daughter of the first marriage, and concluded for reduction of the assignation, as being gratuitous, and neither absolute or irrevocable, and also executed for the purpose of disappointing the claim of legitim of the children of the first marriage.

The Lord Ordinary, after proof, pronounced the following interlocutor and note:—

“ Edinburgh, 2 d April 1872.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record, proof, and process, assoilzies the defender from the conclusions of the summons, finds no expenses due, and decerns.

Note.—The assignation sought to be reduced is an absolute and irrevocable deed. By that deed the deceased Thomas Beveridge conveyed to his son, the defender, his lease for nineteen years after Martinmas 1863 of the farm of Craighead of Aldie, which had been granted to him with right of succession to his said son, together with the whole crop, stocking, implements of husbandry, household furniture, and other effects on the farm, being his whole means, estate, and effects, under burden of the provisions therein mentioned. The deed was executed on 6th March 1868, and it is proved that it was delivered to the defender on 23d March 1868. It is also proved that the defender thereupon, and in virtue thereof, entered into possession of the farm, and of the whole subjects thereby conveyed, and thereafter held and managed the same as his own property. In particular, it is proved that the defender paid for the seeds and manures required for the farm, and the other farm expenses, sold the wool and other produce of the farm, paid the rents to the landlord falling due thereafter, and was recognised by the two successive factors of the landlord as tenant under the lease. The three policies of insurance on the farm buildings, stock, implements, and furniture, were, by docquet written on each of them, dated 19th August 1868, declared to be vested in the defender, and not in his father, and were delivered to him. The defender also engaged the farm servants; took out in his own name and paid for the licenses for the farm dogs; changed the bruist or mark of the sheep on the farm on the earliest occasion that this could be done after his entry, namely, at the clipping-time in June 1868; and, in short, carried on the farm as sole lessee thereof, and as absolute owner of the whole stock and plenishing thereon. It is proved also that although his father continued to reside in the farmhouse with him, he did not interfere in the management of the farm, but recognised the defender as the sole farmer and as the head of the house, and told the neighbours that he had nothing to do with the farm, having given everything over to the defender.

There can be no doubt that the said assignation was prepared on the instructions of Thomas Beveridge, and was executed by him, and delivered to the defender, for the express purpose of preventing any claim for legitim on the part of the pursuer, Mrs Skinner, and her sister and two brothers, the surviving children of Thomas Beveridge by his first marriage. But that will not vitiate the deed if it was executed in liege poustie, and if Thomas Beveridge was thereby divested of his property. The Lord Ordinary considers that Thomas Beveridge was completely divested by that assignation of all right of property in the lease, and farm, stock, plenishing, and furniture thereby conveyed, and that the same became the absolute and exclusive property of the defender from and after 23d March 1868. No doubt the defender was taken bound by the assignation to maintain his father and mother and three unmarried sisters in a manner suitable to their station, to receive and entertain such friends of his father and mother as might visit them, and to furnish his father and mother with a conveyance free of charge to such places as they might require. But that was merely an obligation undertaken by the son as a burden or condition imposed by the assignation, and no right in the lease or effects assigned was thereby reserved to or constituted in favour of the father. That obligation has not the force or effect of a reservation of his liferent by the father, supposing that the subjects assigned had been of such a nature as to be validly assigned under such a reservation. Now it has been decided that a reservation of a right of liferent in bank stock and bonds for borrowed money, conveyed by an inter vivos conveyance, will not prevent the deed from taking full effect, and excluding the claim to legitim; Agnew, Feb. 28, 1775, Dict. 8210. The Lord Ordinary is

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aware of and has carefully considered the remarks on this case by Lord Eldin and Lord Rosslyn, in the subsequent case of Lashley v. Hog, May 14, 1800, Dict. v. ‘Legitim,’ No. 2, and 1804, 4 Pat. App. 581. But in the recent case of Collie v. Pirie's Trs., Jan. 22, 1851, 13 D. 506, in which the grounds of judgment in the House of Lords in the case of Lashley v. Hog were considered, the reservation of a right of liferent was again held ineffectual to prevent the operation of a duly delivered and irrevocable inter vivos deed in excluding the legitim. The obligation in the assignation to maintain the father and his wife and unmarried daughters cannot therefore have such an effect. The obligation also to make payment to the wife and children of Thomas Beveridge, at the periods stated after his decease, of the sums specified in the assignation, cannot, it is thought, prevent that deed from excluding the claim to legitim. In the case of Agnew, the conveyance was burdened with payment of the grantor's debts, of an annuity of £90 after his death to his youngest daughter, and of two sums to his daughter and granddaughter.

The Lord Ordinary is of opinion that the pursuers have failed to establish any good or sufficient grounds on which the assignation in favour of the defender can be challenged as in fraudem of their claim to legitim. That deed is inter vivos absolute and irrevocable. It was duly delivered to the defender, and he thereupon entered upon possession of the whole subjects and effects thereby conveyed, and thereafter possessed, managed, and dealt with the same as his sole and exclusive property. His father was validly and completely divested of these subjects and effects, they ceased to be his property, and they formed no part of his moveable estate at his death, but were the sole and exclusive property of the defender. Therefore the pursuers have no right to legitim out of these effects, and the defender is entitled to be assoilzied from the conclusions of the summons.

The Lord Ordinary considers that, in the peculiar circumstances of this case, the pursuers should not be found liable in expenses.”

The pursuer reclaimed.

Argued for the reclaimer, that the assignation was neither absolute nor irrevocable; that it was gratuitous, and under the pretence of being an absolute de prœsenti conveyance, was nothing else than a deed to regulate the division of the defender's means and estate at his death; and, having been thus executed in fraud of his children's right of legitim, and not having been intimated or published, it was reducible at their instance.