Scottish Court of Session Decisions

The deceased James Robertson senior, lodging-house keeper, Wemyss Place, Edinburgh, died on 29th December 1884. By his deed of settlement he appointed certain trustees and executors, and he also conveyed to them as trustees the whole estate which should belong to him at the time of his death.

The only heritable property left by the said James Robertson was a portion of the eastmost tenement of houses in Darnaway Street, Edinburgh, which he acquired in 1872 from a person named Dick. The title to these subjects was taken to the deceased “James Robertson senior, and his wife Mrs Elizabeth James or Robertson in conjunct liferent for the said Elizabeth James or Robertson for her liferent use allenarly, and to the said Jemima Robertson, James Robertson junior, and Francis Robertson, their children,” equally between them in fee, subject to a reservation, power, faculty, and liberty” in favour of James Robertson, which was thus expressed, viz., but under reservation of power to the said James Robertson at any time during his life, and without the consent of his wife, the said Jemima Robertson, “to sell, burden, wadset, and affect with debt, or even gratuitously dispone, the subjects as if he were absolute proprietor of the same.”

Francis Robertson, the son of James Robertson senior, had, subsequently to the acquiring of the house by his father, been for a time in the employment of Honeyman & Wilson, pursuers of this action, in a position of trust, and James Robertson senior was his cautioner to the extent of £100. This was an action by Honeyman & Wilson to make good the cautionary obligation. They stated that Francis Robertson owed them more than £400; that it was necessary to proceed against his father, his cautioner; that it had been intimated to them that his executry would not yield that amount, and that it had thus become necessary to adjudge his heritage, and they therefore raised this action.

They concluded for payment of the £100 mentioned in the cautionary obligation, and for declarator that the “reservation, power, faculty, and liberty in favour of the said deceased James Robertson at any time of his life, and without the consent of his then wife, the defender the said Elizabeth James or Robertson, and his children the said deceased Jemima Robertson or M'Leod, the defender the said James Robertson, and the defender the said Francis Robertson, or any of them, to sell, burden, wadset, or affect with debt, and even gratuitously dispone, the subjects and others hereinafter described, and generally to do every other thing thereanent as if he were still absolute proprietor of the same,”which reservation was contained in the title to the house above stated, “were duly and validly used and exercised by the said deceased James Robertson in favour of the pursuers the said Honeyman & Wilson by the contraction on the part of him, the said deceased James Robertson, of the obligation specified and contained in the foresaid cautionary obliga tion, and since become prestable, and the failure on the part of him, the said deceased James Robertson, to leave and provide sufficient funds otherwise to meet the same; at least that the foresaid reservation and others were so used and exercised to the effect of entitling the pursuers to have the said subjects and others adjudged to them for payment of their foresaid debt.” While admitting that the heritable subjects were burdened with debt, the pursuers averred that the subjects were worth a sum which would extinguish both the heritable bond and their own debt.

The action was defended by Mrs Elizabeth James or Robertson, the widow. She stated that the trust-estate was exhausted in paying the truster's debts, and she averred that the destination to the heritage was taken by the truster, being then solvent, in the terms above set forth with the view of making a provision for her, his wife, in the event of her surviving him; that no other provision of any kind was made, and the deceased James Robertson having left no other estate than what is specified herein, she had no means of subsistence other than her liferent in the subjects; that the provision was a reasonable one.

The pursuers pleaded, inter alia—“(2) The said deceased James Robertson having contracted the obligation sued on, and not having left estate to meet the same otherwise, the reservation and others in favour of the said deceased James Robertson libelled must be held to have been used and exercised by him at least to the effect mentioned in the summons, and the pursuers are accordingly entitled to decree of declarator as concluded for. (3) The pursuers are entitled to have the subjects and others mentioned in the summons adjudged to them for payment of the debt due to them by the said deceased James Robertson.”

Mrs Robertson pleaded, inter alia—“(1) The present defender Mrs Elizabeth James or Robertson is entitled to vindicate her right of liferent under the investiture in her favour as against the pursuers' alleged rights or claims. (2) Being feudually vested in the subjects mentioned in the summons long before pursuer's alleged debt was constituted or incurred, the defender cannot now be dispossessed by them. (3) In any event, if the subjects can be adjudged under this action, they must be burdened with the liferent right in favour of the defender.(4) The action is incompetent and irrelevant, in respect the liferent infeftment on the present defender's favour, if reducible, can only be set aside in a properly libelled action of reduction. (5) The deceased James Robertson senior having died without having exercised the reserved faculty or power in his favour condescended on, the pursuers are not entitled to the decree concluded for.’

The Lord Ordinary ( Lord Kinnear) on 31st March 1886 pronounced the following interlocutor:—“Finds that the fee of the subjects libelled was vested in the deceased James Robertson; that the same are liable to be adjudged for payment of his debts, and that the liferent interest of the defender Mrs Elizabeth James or Robertson is not valid or effectual to her in competition with the creditors of the said deceased: Therefore repels the first five pleas-in-law for the defender, and continues the cause, reserving in

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the meantime all questions of expenses: Grants leave to reclaim.

“ Note.—The title to the subjects in question is taken to the deceased James Robertson and his wife, the defender, in conjunct liferent for her liferent use allenarly, and certain of their children in fee, but under reservation of power to the husband, at any time during his life, and without the consent of his wife or children, ‘to sell, burden, wadset, and affect: with debt, or even gratuitously dispone, the subjects as if he were absolute proprietor of the same.’ There can be no question that this leaves the absolute right of property in the husband, and that the interest of the wife and children is nothing more than a hope of succession to the rights of fee and liferent conferred upon them respectively.

“It is said that the wife's liferent ought to be sustained as a reasonable provision since she is not otherwise provided for, and there would have been force in the contention were it not for the absolute right of the husband to dispone the subjects, either onerously or gratuitously, without the consent of the wife. But a widow cannot compete with the husband's creditors for a provision which may be revoked at the pleasure of the husband. The case appears to be a hard one, but I can find no sufficient reason for holding that the subjects are protected from the diligence of the husband's creditors.

“The case was argued on the assumption that there was a debt due, and that the only question was whether the defender's liferent could be affected by an adjudication at the pursuer's instance. But the amount is not proved by admission or otherwise, and decree of constitution cannot be given until this is done.”

The defender reclaimed, and argued—It was a question of circumstances whether a declaration of this kind was to be viewed as a donation or a provision. Here the circumstances were in favour of a provision for the widow. The husband was solvent at the date of the infeftment in the heritable subjects, and: though the deed contained the reservation in his favour of a right to burden, and even alienate, yet in the circumstances of the case it was clear that the husband intended the gift as a provision for his wife, and it was a reasonable provision.

Authorities— Dunlop v. Johnston, April 2, 1867, 5 Macph. (H. of L.) 22; Galloway v. Craig, 4 Macq. 272; Wright v. Harley, June 2, 1847, 9 D. 1151; Donaldson v. Thomson, January 25, 1873, 11 Macph. 347; Rust v. Smith, January 14, 1865, 3 Macph. 378.

Replied for the respondents—The question was whether the husband here had made a reasonable provision for his wife, for the reserved power in him was inconsistent with the wife's provision. Was this donation revocable or not? Clearly it was revocable, and that distinguished the present case from those cited on the other side. This provision in favour of the wife was purely testamentary.

Authorities—Bell's Prin. ii. 1944; White's Trustees v. White, June 1, 1877, 4 R. 786.

At advising—