Scottish Court of Session Decisions

A petition was presented in the Sheriff Court of Perth by Miss Anne Wanlass Sim craving the Court to find that as heir of line she was entitled to procure herself infeft in certain subjects in Stanley and Perth. The petitioner's averments with respect to the properties were stated by the Sheriff-Substitute as the following:— “She avers, in the first place, that as regards the Stanley property Mrs Elizabeth Mitchell or Wanlass, Mrs Agnes Mitchell or Knox, Mrs Ann Mitchell or Pullar, and Jean Mitchell were infeft in it as pro indiviso proprietors. She also avers that a part of this property was conveyed to William Pullar, and in regard to the part so conveyed she makes no claim. As regards the Bridgend property, it belonged to the said

Mrs Ann Mitchell or Wanlass and Jean Mitchell pro indiviso, conform to extract of sasine in their favour registered 14th September 1831. She further avers that Mrs Wanlass conveyed all her rights to both properties to her daughter Mrs Ann Wanlass or Sim, who died in 1873; that Mrs Sim made up no title to these properties, and was succeeded by her eldest son Joseph Sim, who died in 1884; that Joseph Sim had a personal right to the lands in the sense of the Conveyancing Act 1874, sec. 9, and that the petitioner is his only child, The petitioner also claims, in the second place, that she has right to a share of Jean Mitchell's interest in both properties, which right she deduces as follows:— Jean Mitchell died intestate and unmarried. Her heirs in heritage were her sisters Mrs Knox, Mrs Pullar, and Mrs Wanlass. They made up no titles to these subjects as her heirs; Mrs Wanlass had two children Mrs Sim and a Mrs Burray, neither of whom completed a title; that consequently the petitioner, through her father the said Joseph Sim, is entitled to succeed to a share of Jean Mitchell's share of both properties.”

Objections to the petition were stated by Mrs Mary Duncan or Sim, Mrs Georgina Sim, and James Malcolm Macintyre, the eldest son of the late Mrs Grace Sim or Macintyre. The objectors were the surviving daughters and the heir of a deceased daughter of Mrs Ann Wanlass or Sim, the petitioner's grandmother, to whom Mrs Wanlass had bequeathed all her property.

The objectors averred that Mrs Sim by a holograph settlement had bequeathed all her heritable property to them, and had expressly excluded the petitioner's father Joseph Sim from her succession. With regard to the reference to Mr Condie contained in the settlement, the objectors averred that large accounts for law business had been incurred to him, and that as delay had taken place in adjusting them, the titles to the various properties remained in his possession, and that Mrs Sim had not any clear idea of the extent to which her properties might be subject to charges in his favour.

The objectors maintained that they were “persons who would under the old practice have been entitled to appear and oppose a service proceeding under a brieve of inquest, and they are accordingly entitled to appear and oppose the present petition in terms of section 40 of the Titles to Land Consolidation (Scotland) Act 1868, and sections 9 and 10 of the Conveyancing (Scotland) Act 1874.”

Section 40 of the Act of 1868 provides— “No person shall be entitled to appear and oppose a service proceeding before the sheriff in terms of this Act who could not competently appear and oppose such service if the same were proceeding under the brieve of inquest according to the law and practice existing prior to the 15th day of November 1847; and all objections shall be presented in writing, and shall forthwith be disposed of in a summary manner by

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the sheriff, but without prejudice to the sheriff, if he see cause, allowing parties to be heard vivâ voce thereon.”

The respondents accordingly objected to the prayer of the petition being granted so far as it referred to the property derived by Mrs Sim from her mother.

The holograph settlement so far as in question was in the following terms:—

Stanley, 20 th Novr. 1868.

I leave and bequeathe to my granddaughter Ann Wanliss Duncan the chest of drawers in the closet, with the press on the top, as a small legacy in memory of her grandmother. I leave my tea caddie, my own work, to my daughter Mary Sim or Duncan, as she has daughters to give it to at her death. I leave my mahogany table to my daughter Grace Sim or MacIntyre. The rest of the articles of furniture in my house are of little value, and you may do with them what you please; they will not be much thought of. You can give the large picture of her four aunts to Ann W. Sim if she chooses to accept of it. The bank receipt upon the Bank of Scotland for £50 to be equally divided between my four daughters after paying my funeral expenses. I can say very little about my property the way it stands, but as long as Mr Condie allows it to remain as it is I want my four daughters to draw the rents and divide them equally between them. I have here stated in these two papers my last wish and desire concerning the furniture and effects left by me at my death. I have left nothing to my son Joseph Sim, as I do not think he would value anything that belongs to me, and likewise he got his share at his father's death, and had it not been for the kindness of my dear mother I would have been poorly attended to for any kindness I have received from him since his father's death. I therefore warn him not to interfere with what I have left to his sisters either by word or deed. Joseph Sim may say my will is not legally done, but I say I have done it in justice to my daughters and my own conscience, and the goods are all my own. Written by my own hand the 20th day of November 1868 years.

”Ann Wanliss or Sim.”

Section 20 of the Titles to Land Act of 1868 provides that where a mortis causa deed “shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain, with reference to such lands, any word or words which would, if used in a will or testament with reference to moveables, be sufficient to confer upon the executor of the granter or upon the grantee or legatee of such moveables a right to receive the same, such deed … shall be deemed to be equivalent to a general disposition of such lands.”

The interim Sheriff-Substitute ( Napier) on 10th November 1899 pronounced the following interlocutor:—“Repels the objections: Finds the facts stated in the petition proved, and that the petitioner is entitled to procure herself infeft as craved, and decerns: Further, finds the objectors liable to the petitioner in expenses.”

Note—“…In this state of matters I am of opinion that the petitioner is entitled to have the prayer of the petition granted.

I am not entitled to decide whether her right to succeed has been extinguished by Mrs Sim's holograph settlement, but this much is clear, that the petitioner intends to dispute that it carries heritage, and the objectors are also well aware that it is not beyond dispute. In addition, the petitioner explained that until she is served, she is unable to raise the action of accounting for the past rents which she says she intends to raise. These reasons show that there is a question between the parties, and to refuse the service will or may prevent the petitioner from being able to vindicate her rights. Finally, under the Titles to Land Consolidation Act 1868, section 40, the Sheriff is to dispose in a summary manner of all objections to a service. Accordingly, for the reasons above given, I repel the objections. Besides asking that the service should be refused, the objectors also asked me to sist this case until the determination of the main question in an action in the Court of Session. If such an action were pending, a sist would seem very appropriate, but none is pending. In addition, Maitland v. Maitland (March 20, 1885, 12 R. 899) is to a certain extent an authority against sisting. On the whole, it does not appear to me that the case ought to be sisted.”

The objectors appealed to the First Division, and argued—If the disposition had been one of shares or stock, the gift of rents, an unqualified gift, subject only to the interference of a security-holder coupled with the exclusion of Joseph Sim, would have been sufficient to carry the capital—Roper on Legacies, p. 1475. The words of limitation in no way altered the character of the gift, but meant nothing more than “so long as no creditor comes in.” If the disposition would be one of capital if applied to moveables, then section 20 of the Act of 1868 applied, and the gift carried the fee of the heritage. Accordingly, as the Sheriff had not taken this disposition into account, he was wrong in granting the petition.

Argued for respondent—The disposition dealt almost entirely with moveables, and Joseph Sim was disinherited only as regarded furniture, &c. But even if there was a complete disinherison of him there was no conveyance of the heritage to a third person coupled with that disinherison. The sentence upon which the appellants founded clearly did not import a conveyance of fee.