Scottish Court of Session Decisions

This was a multiplepoinding raised to determine certain questions as to the right of succession to part of the estate left by Alexander Walker, builder, Dundee, who died on 22 d January 1877. The action was raised by the executor appointed by Mr Walker in his testament of date 5th June 1876. The purposes for which the executor was directed to hold the estate were—(First) Payment of all the deceased's just and lawful debts, deathbed and funeral charges, and the expenses to be laid out in confirming and recovering his means and estate: (Second) Payment of one-third of the free residue of his means and estate, after converting it into cash, to Mrs Isabella M'Leish or Walker, his widow; one-third equally between Ann Shepherd Walker, his daughter, and Harry Walker, his son; and the remaining one-third to his mother Mrs Ann Shepherd or Walker, residing in Wellington Street, Dundee, relict of Simon Walker, sawyer, Perth; and in the event of her predeceasing him, to his sister Mrs Jane Walker or Bell, wife of James Bell, pensioner, residing in Glasgow. Mr Walker was survived by his widow, his children, to whom Mr Macbrair was appointed tutor ad litem, and his mother. He left no heritable estate. His moveable estate amounted to upwards of £3000.

Among the moveable estate, and included in the condescendence of the fund in medio, was a bond granted by the Dundee Harbour Trustees “in

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consideration of the sum of five hundred pounds sterling advanced and paid to them by Alexander Walker …. and Mrs Isabella M'Leish or Walker, his spouse, ” as security for which the trustees assigned the harbour works “to the said Alexander Walker and Mrs Isabella M'Leish or Walker, equally between them, and to the survivor of them, and to the heirs, executors, administrators, and assignees of the survivor, ” to be held by them, and the survivor and their foresaids, until the said sum of £500, and interest at the rate of 4 per cent. per annum from the 19th March 1875 till the term of Whitsunday 1878 (when the principal sum was declared to be repayable on six months’ previous notice), should be satisfied and paid.”

Mrs Walker objected to the sum of £500 being included in the personal estate of the deceased, maintaining that as the assignment was delivered and recorded on her behalf, her husband was divested of the right to it during his life.

The Lord Ordinary ( Adam) allowed Mrs Walker and the real raiser a proof of their averments, and thereafter, by interlocutor dated 24th January 1878, found that this sum formed part of Alexander Walker's estate at the time of his death. He added this note:—

“ Note. …—It appears from the evidence that the £500 for which the bond was granted was the money of Mr Walker—no part of it belonged to Mrs Walker.

It further appears that Mr Walker during his life received payment on his individual receipt of four termly payments of interest.

It was proved that the assignment was kept in a drawer, to which both Mr Walker and his wife had access, along with other papers belong-ing to him, and it was there found after his death.

It appears to the Lord Ordinary that the assignment was not a delivered deed, but remained in the possession and subject to the control of Mr Walker during his life.

The Lord Ordinary therefore thinks that this sum of £500 was not the property of Mrs Walker during her husband's life, but formed a part of his means and estate at the time of his death, and therefore has been rightly included in the condescendence of the fund in medio. Hill, M. 11, 580; Balvaird, 5th December 1816, 19 F.C. 220.

It may be that Mrs Walker may have a good claim to the sum in the bond in respect of the terms of the destination; but the real raiser, who alone appeared to oppose Mrs Walker's objections, had no interest in the question, and the Lord Ordinary has not decided it.”

The question was then raised by Mrs Walker, whether she was entitled to the £500 in respect that the special destination in the bond was not defeated by the posterior general settlement, and that the testator intended her to have this provision as well as the third of the estate provided to her by his testament. The Lord Ordinary ( Adam), by interlocutor dated 26th February 1878, ranked and preferred the claimant to this sum, adding this note:—

“ Note.—… The question now is, whether his widow, the claimant Mrs Isabella M'Leish or Walker, is entitled to this sum of £500 in respect of the special destination thereof in her favour contained in the assignment, or whether it is to be distributed as part of the free residue of Mr Walker's estate, in terms of his settlement of 5th June 1876?

The settlement only embraces Mr Walker's moveable estate; but by the 68th section of the Dundee Harbour Act 1869, which was in force at the date of the assignment, it was declared that all mortgages or assignments to be granted by the trustees under the authority of that Act, and all monies lent on the security of the rates and revenues, should be moveable or personal estate, and transmissible as such, and should not be of the nature of heritable or real estate.

Unless the assignment in question is carried to Mrs Walker by the terms of the special destination in her favour, it will be carried by the settlement, and falls to be distributed as a part of the free residue of Mr Walker's estate.

The assignment bears that the trustees, in consideration of the sum of £500 paid to the treasurer by Alexander Walker and Mrs Isabella M'Leish or Walker, his spouse, ‘do hereby sell, assign, and make over to the said Alexander Walker and Mrs Isabella M'Leish or Walker, equally between them, and to the survivor of them, and to the heirs, executors, administrators, and assignees of the survivor, the harbour and works, &c., ’ to be held until the sum of £500, with interest, should be satisfied and paid.

Mrs Walker is the survivor, and maintains that this special destination in her favour is not revoked by the subsequent general conveyance by Mr Walker to his executor of his whole moveable estate.

The Lord Ordinary is of opinion that, giving effect to the principles adopted by the House of Lords in the case of Glendonwyn v. Gordon, May 19, 1873, 11 Macph. p. 33. the claimant Mrs Walker is entitled to succeed. It was there stated by Lord Colonsay that a general disposition mortis causa does not derogate from a prior special destination, unless it be made clear that it was intended so to do.

The case of Glendonwyn no doubt related to the successors of an heritable estate; but the principle does not seem to be limited to settlements of heritable estate, and it will be observed that both Lord Colonsay and the Lord Chancellor referred to the case of Campbell v. Campbell, 1 Pat. 343, which related solely to moveable estate, as an authority in support of the principle.

If, then, the general disposition contained in Mr Walker's settlement of his whole moveable estate to his executor is not to be presumed to apply to the sum of £500 in the assignment previously specially destined to Mrs Walker, it appears to the Lord Ordinary that there is nothing else in the case to lead to the inference that it was intended so to apply. The Lord Ordinary therefore thinks that Mrs Walker is entitled to the sum of £500 in addition to one-third of the estate under the settlement. The cases on the subject are all referred to in the cases of Glendonwyn, ut supra, and Thoms v. Thoms, March 20, 1868, 6 Macph. 704.”

Mrs Walker reclaimed against the interlocutor of 24th January 1878; Mr Macbrair, the tutor ad litem to the children, against that of 26th February 1878.

The authorities are quoted in the Lord Ordinary's notes.

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At advising—