- 4 March 1873
(1872-75) L.R. 3 P. & D. 45 Sir J. Hannen
Will?Scotch Disposition and Settlement?Probate.
Testator executed a trust disposition and settlement, valid according to the law of Scotland, and applicable to the whole heritable and moveable estate which should belong to him at the time of his death. He subsequently executed a will, by which he disposed of all his real and personal estate, whether in Scotland or England. By the law of Scotland, the English will was ineffectual as a conveyance of the Scotch heritage, and did not revoke the previous settlement, and the two documents together form the complete testamentary disposition of the testator. The deceased's domicil was English, but he had a freehold estate in Scotland. The Court granted probate of the will and trust disposition as together containing the will of the deceased.
JOHN DONALDSON, of North Shields, Northumberland, master mariner, died on the 8th of October, 1865, having executed a will, dated the 5th of August, 1865, by which he disposed of all his real and personal estate, whether in England or Scotland. This will was proved in the district registry of Newcastle in August, 1872, by John Donaldson, the son of the deceased and the surviving executor named in it. Up to the year 1820 the deceased was domiciled in Scotland, and was resident at Dundee; but at the time of his death his domicil was English. His personal estate in England was of small value; he was, however, possessed of freehold property situate at Dundee. By a Scotch disposition and settlement, dated the 21st of January, 1851, the deceased conveyed to trustees his whole heritable and moveable property, and gave to them power to sell the same; under which power a part of such property had been sold, and the proceeds of the sale remain in the hands of James Dickson, of Dundee, the surviving trustee named in the deed. He further reserved to himself in this deed a power to alter the same, in whole or in part, and to revoke, cancel, or annul it as he might think proper. This deed was duly registered according to the law of Scotland, in the general registry of saisines situate at Edinburgh, but applicable to the county of Forfar. After the deceased's will had been proved in this country, the probate was sent to Scotland for confirmation by the Commissary Court of Edinburgh, where it was objected that the deceased's will and the said disposition and settlement must be read together as containing the will and final disposition of both the heritable *46 and moveable estate, but that the Commissary Court had no power to make a confirmation of the will with such disposition and settlement added or annexed thereto, unless such disposition and settlement were first admitted to probate in England. A Scotch advocate advised that, even if the English will is duly executed according to the law of England, it is ineffectual as a conveyance of the Scotch heritage; and that it does not, by implication, revoke the previous trust disposition in the Scotch form, which effectually conveyed the heritable property in Scotland to the trustee appointed by that instrument. That the trust disposition and the settlement and will must be read together as containing the final testamentary intentions of the testator; the former being good as transmitting the heritable estate to the trustees therein named, and the latter being effectual as a transmission of any personal estate which belonged to the testator at the time of his death, and also as expressive of the trusts under which the Scotch property should be held or applied, and further indicating the testator's intention that the trustees appointed by the English will should supersede those appointed by the trust disposition and settlement, and that it is the duty of the trustees under the Scotch disposition and settlement to convey or pay over to the executor under the English will for the purposes of the will the trust estate in Scotland; and that the English executor, in order to complete his title, should obtain probate of the trust disposition and settlement, and of the English will, as being together the will of the said deceased; and that the executor of the English will would thereby become entitled to give a valid discharge to the Scotch trustee on his conveying the trust estate to the English executor. Mr. Dickson, the surviving trustee under the trust disposition and settlement, is desirous of having a release from such trust estate; and Mr. John Donaldson is willing to execute a discharge to him for the same when he can legally do so.
Feb. 8. Dr. Spinks, Q.C. , moved the Court to revoke the probate already granted, and to admit the trust disposition and settlement, together with the will, to probate, as together containing the will of the deceased. He referred to Lemage v. Goodban .1
Cur. adv. vult.
*47
March 4. SIR J. HANNEN.
The deceased, John Donaldson, a native of Scotland, but domiciled in England, died at North Shields on the 8th of October, 1865. By his will, dated the 5th of August, 1865, he disposed of all his real and personal estate, whether in England or Scotland, and appointed his son, John Donaldson, and a person since deceased, his executors. This will was proved by John Donaldson in the district registry of Newcastle-upon-Tyne in August, 1872. The deceased was possessed of a small amount of personal property in England. He was also possessed of freehold property in Scotland. By a Scotch disposition and settlement, dated the 21st of January, 1851, duly executed, and having a testamentary effect by the law of Scotland, the deceased conveyed to James Dickson and other persons since deceased, upon certain trusts, his whole heritable and moveable estate then belonging, or which should belong, to him at the time of his death, with power to the testator at any time of his life to alter the same trusts in whole or in part, and to revoke, cancel, and annul the same as he might think proper. It appears, from the opinion of a Scotch advocate, that the English will is ineffectual as a conveyance of the Scotch heritage, and that it does not revoke the previous trust disposition in the Scotch form, which effectually conveyed the heritable property in Scotland to the trustees appointed by that instrument. Upon the assumption that by the law of Scotland the English will was inoperative upon the Scotch settlement, the complete testamentary dispositions of the deceased are not to be found in the English will alone, but in that instrument construed together with the Scotch settlement; and in this state of things this Court will admit to probate the several instruments which together contain the last will of the testator: Lemage v. Goodban .2 I therefore order that the probate of the English will already granted be revoked, and that a re-grant be made of probate of that will, together with the Scotch disposition and settlement, as prayed.
Representation Attorneys: Hopwood & Sons .
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1794 - 1865 (71 years)
