Scottish Court of Session Decisions

William Minto purchased the flats and attics of a front tenement situated in Barrack Street, Dundee, conform to disposition dated 7th and 8th May 1873. The disposition bore that the purchase price (£600) was paid by the truster, and that the disponers “at his request, but with the reserved power, faculty, and liberty in his favour after mentioned,” disponed the subjects in favour of William Minto and “Margaret Sheriffs or Minto, his wife, and to the longest liver of them, and the assignees of the longest liver, heritably and irredeemably.” [ Here follows description of flats and attics in question.] “Declaring also that the said William Minto shall have full power, faculty, and liberty by himself alone, without the consent of his said wife, to sell and dispose of and dispone and convey the foresaid subjects and others, and that either for onerous or gratuitous causes as he may think proper; as also to burden the said subjects and others above disponed with debt to such extent as he may think proper, and grant bonds and dispositions in security, or other deeds in security, over and affecting the said subjects and others for securing payment to the lenders, all as fully, freely, and effectually as if he were sole fiar of the said subjects hereby disponed.” The said disposition was recorded, on William Minto's instructions, in the appropriate Register of Sasines on 8th May 1873, with a warrant of registration thereon in the following terms;—“Register on behalf of William Minto, brushmaker, Dundee, and Margaret Sheriffs or Minto, his wife, and the longest liver of them, in the register of the Burgh of Dundee.”

In 1879 and 1894 respectively William Minto acquired the rest of the said tenement in Barrack Street, Dundee, and took the title thereto ( i.e., to the rest of the tenement) in favour of himself and his heirs and assignees.

William Minto died on 17th March 1898 leaving a trust-disposition and settlement dated 8th September 1896. In this deed he conveyed to trustees “All and sundry lands and heritable estate of every description presently belonging or which shall belong to me at the time of my death,” and his whole moveable estate, for the following trust-purposes — (1) Payment of his debts; (2) Delivery of his furniture, &c., to his wife, Mrs Margaret Sheriffs or Minto, in the event of her surviving him; (3) Inter alia, in the event of his wife surviving him the trustees were directed to hold the residue of the estate until the death of the last survivor of her and his brother John Duncan Minto, and Margaret Helen Carnegie, the niece of his wife, and dispose of the income as follows, viz., “In the event of my said wife surviving me my trustees shall pay to her during all the days and years of her life the whole of the said free income of the residue of my property, means, and estate, and that yearly, half-yearly, or otherwise, as to my trustees may seem proper; and if the said free income shall not in any year or years amount to one hundred pounds sterling, my trustees shall in each such year or years from the capital of the estate make up the amount to one hundred pounds, my wish and intention being that my said wife shall not in any year receive less than one hundred pounds.” Provision was then made for payment of the free income to the said Jonn Duncan Minto and Margaret Helen Carnegie in the event of both or either surviving the truster or his wife, (4) Payment, after the deaths of the truster, his wife, the said John Duncan Minto and the said Margaret Helen Carnegie, of two legacies; and (5 and lastly) division of the residue after the death of the last survivor of the truster, his wife, the said John Duncan Minto, and the said Margaret Helen Carnegie, amongst the several nephews and nieces therein named of Mr and Mrs Minto, or the survivors of them equally, share and share alike, per capita. The deed contained, inter alia, the following clauses—“And I hereby provide and declare that the provisions before written in favour of my said wife shall be accepted of by her in full satisfaction of all terce of lands, jus relictæ, or half or third of moveables, and every other claim competent to her by or through my decease in any manner of way… . Further, I do hereby give to my trustees full power to invest and lend out the trust funds or any part thereof in or upon such heritable or personal investments as they may deem suitable and safe… . And I hereby revoke all settlements executed by me at any time heretofore.”

William Minto was survived by his wife, his brother John Duncan Minto, and his wife's niece Margaret Helen Carnegie. At the date of his death the value of the flats and attics of the front tenement in Barrack Street, Dundee, purchased by him in 1873, was estimated at £600, and the annual rent was £43, 10s., while the value of the rest of the tenement acquired in 1879 and 1894 was estimated at £1300, and the rent amounted to £74. In addition the truster left a heritable property at Downfield, Dundee, which he himself occupied at the date of his death, the value of which was estimated at £700, and the rental of which was £28. He also left moveable estate of the value of £700.

In these circumstances questions arose as to the result of the truster's general settlement.

The trustees contended—“(l)That the part of the property in Barrack Street, Dundee, contained in the disposition of 1873, was carried by the trust-disposition and settlement; or (2) alternatively that in the event of its

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not being found to be so carried, they were entitled to deduct the rent thereof from the £100 directed by William Minto to be made up annually to his widow. On the other hand, the widow contended that the property was not carried by the said trust-disposition and settlement, but belonged to her in virtue of the destination in said disposition of 1873, and that she was entitled to an income of not less £100 a-year out of the trust-estate under the administration of the trustees, and that they were not entitled to take into account in any way the rents she might receive from the part of said tenement contained in the said disposition of 1873.”

For the determination of this dispute a special case was presented to the Court by (1) William Minto's trustees, and (2) his widow.

The questions of law were—1. “( a) Does the part of the Barrack Street property acquired under the disposition of 1873 now belong to the second party as the survivor of the spouses in virtue of the destination in that disposition; or ( b) is it carried to the first parties by the said William Minto's trust-disposition and settlement? 2. In the event of branch ( a) of question I being answered in the affirmative, is the second party entitled to a sum of not less than £100 annually from the first parties under the third purpose of the said William Minto's trust-disposition and settlement, or is she entitled annually to a sum from the first parties, which, with the amount of the free rents of the part of the tenement in the disposition of 1873, will amount to £100?”

Argued for second party—The general rule of law that a special destination was not evacuated by a general disposition of the whole estate was applicable to the present case. There was a strong presumption against revocation; mere general words were not enough to revoke. A special destination must be revoked by a special revocation, or at least the intention of the testator to revoke by means of the general disposition must be clearly expressed. There was nothing in the present case to indicate an intention on the part of the testator to revoke the prior special destination except the general words used in settling his whole estate. This was not enough to revoke the special deed— Paterson's Judicial Factor v. Paterson's Trustees, February 4, 1897, 24 R. 499; Campbell v. Campbell, July 8, 1880, 7 R. (H.L.), opinion of Lord Chancellor Selborne, 101; Webster's Trustees v. Webster, November 8, 1876, 4 R., opinion of Lord Gifford, 103; Glendonwyn v. Gordon, May 19, 1873, 11 Macph., opinion of Lord Colonsay, 39. The present case dealt with heritable property, so it was a fortiori of cases dealing with bonds moveable as regards succession, such as Walker's Executor v. Walker, June 19, 1878, 5 R. 965. The state of affairs in that case was the same as here; there was no incompatibility between the two deeds so as to make the one destroy the other. The provision that the income to be paid to the widow was to be made up to £100 if it fell below that sum clearly indicated that the property purchased in 1873 was not dealt with by the general settlement, because otherwise there would have been no need of such a provision, as there would have been no chance of the income falling at any time below £100.

Argued for the first parties—In all cases like this the intention of the testator was the guiding rule. The language of the general settlement was sufficient to evacuate the special destination if it could be shown in any other way that it was the intention of the testator so to do, such as the need of the money in the special deed for the execution of the purposes of the general settlement — Lang's Trustees v. Lang, July 14, 1885, 12 R., opinion of Lord Rutherfurd Clark, 1270, or the condition of the parties, or the mode in which the testator had dealt with his estate— Gray v. Gray's Trustees, May 24, 1878, 5 R., opinion of Lord President Inglis, 824; Brydon's Curator Bonis v. Brydon's Trustees, March 8, 1898, 25 R. 708. They relied on the insufficiency of the funds as evidence of the truster's intention to revoke the deed of 1873. The rents of heritable property were apt to decline in value, and a suitable margin must be left for contingencies. If expenses of management and upkeep were deducted, the income of the whole property would not amount to much over £100. Besides, the trustees had a power of sale, and if they exercised that power and reinvested the proceeds in safe securities the return would not be more than £100.