John Wauchope, W.S., only accepting Trustee of the deceased John, Duke of Roxburghe; the Rev. Charles Baillie, Second Son of the late Honourable George Baillie of Mellerstain, now Archdeacon of Cleveland; Sir John Scott of Ancrum, Bart.; Sir Henry Hay Makdougall of Makerston, Bart.; and Others v. Lady Essex Ker, and Lady Mary Ker, Daughters of Robert, Duke of Roxburghe, deceased; and Sisters of the late Duke, John: and James Thomson, W.S., their Attorney [1812] UKHL 5_Paton_559

UKHL
John Wauchope, W.S., only accepting Trustee of the deceased John, Duke of Roxburghe; the Rev. Charles Baillie, Second Son of the late Honourable George Baillie of Mellerstain, now Archdeacon of Cleveland; Sir John Scott of Ancrum, Bart.; Sir Henry Hay Makdougall of Makerston, Bart.; and Others v. Lady Essex Ker, and Lady Mary Ker, Daughters of Robert, Duke of Roxburghe, deceased; and Sisters of the late Duke, John: and James Thomson, W.S., their Attorney
[1812] UKHL 5_Paton_559 · 1804-03-19
John Wauchope , W.S., only accepting Trustee of the deceased John, Duke of Roxburghe; the Rev. Charles Baillie , Second Son of the late Honourable George Baillie of Mellerstain, now Archdeacon of Cleveland; Sir John Scott of Ancrum, Bart.; Sir Henry Hay Makdougall of Makerston, Bart.; and Others, Appellants v. Lady Essex Ker , and Lady Mary Ker , Daughters of Robert, Duke of Roxburghe , deceased; and Sisters of the late Duke, John : and James Thomson , W.S., their Attorney, RespondentsHouse of Lords, 21st Feb. 1812 .

(Reduction on the head of Deathbed.)

Subject_ Deathbed — Reduction ex capite lecti. —

was concerned, leaving it and the trust deed to have effect as to the moveable estate.A trust-deed was executed by John, Duke of Roxburghe, in liege poustie , conveying his heritable and moveable estate to trustees at his death, for these purposes; (1.) To pay his debts. (2.) To pay annuities and legacies; and, (3.) To settle the residue on such person or persons as he had or should afterwards appoint, by deed executed by him at any time during his life. He executed, on deathbed, this deed of instructions to his trustees, and this deed, in so far as it affected the heritable estate, was sought to be reduced. Held, that by the trust deed, the Duke had not divested himself of the heritable estate,—that the heir at law's right still existed until the moment of the Duke's death; and that the deed executed by the Duke on deathbed was reducible, in so far as his unentailed heritable estate

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1803.The present action is the reduction raised by the respondents, to set aside the deed of instructions and disposition of 19th March 1804, in so far as the Duke of Roxburghe's unentailed heritable estate was concerned, on the ground of deathbed. It was seen that a previous trust deed had conveyed his whole heritable and moveable estate to the appellants, as trustees for these purposes, 1. To pay his debts; 2. Legacies and annuities; and, 3. To convey and make over the residue to any person or persons he should appoint at any time during his life. This latter deed was accordingly executed, and called the deed of instructions on deathbed.The facts, as to the execution of this deed, and the evidence led, are fully set forth in the preceding appeal; and it has been seen that the Duke died on the evening of the day on which the deed was executed. In this case, the Court had ordered memorials as to the question of deathbed.July 8 and 9, 1806.Nov. 25, 1806.When these were given in, the Court pronounced this interlocutor:
“The Lords reduce, decern, and declare, in terms of the pursuers' libel, in so far as relates to the whole heritable subjects conveyed by the trust deed, dated the 5th day of November 1803, and descendable to the pursuers as heirs alioqui successuræ alioqui successuræ under the titles thereof, which stood in the person of John Duke of Roxburghe, exclusive of the mortis causa settlements executed by his Grace, and decern and declare accordingly. But in so far as regards the heritable property conveyed by the trust deed, and descendable to the Duke's heirs male by the titles thereof, remit to the Lord Ordinary to hear parties thereon.”
* On reclaiming petition the Court adhered.

Footnote

* Opinions of the Judges:—

Lord President Campbell said,—“The challenge on this head (Deathbed ) is clearly well founded as to the heritable estate.Heirs alioqui successuræ alioqui successuræ were not excluded by the trust-deed, (which was in liege poustie ), but remained in their proper place till the Duke came to be on deathbed. It was too late then to execute a deed of any kind, to have the effect of displacing them, and introducing other heirs.The trust-deed, so far as it goes, neither is nor can be challenged, but the trustees must denude of the heritable estate in favour

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Feb. 12, 1807.After some farther procedure before the Lord Ordinary, his Lordship, of consent, disjoined the two actions which had been conjoined, and allowed them to be separately extracted, but refused to allow an interim decree, and appointed them to lodge their accounts in fourteen days.Against these interlocutors the present appeal was brought to the House of Lords.Pleaded for the Appellants .—1. The trust disposition executed by the Duke of Roxburgh in liege poustie , on 5th

Footnote

of the heirs at law, after executing the other purposes of it, i.e . after paying debts and legacies, and accounting for the whole personal or moveable estate to the residuary legatees. The heirs at law, by calling upon them to denude the heritable estate, are not homologating the deathbed deed, but the reverse. The very ground of their action is, that the last deed can have no effect as to the heritage. The effect of the trust-deed was not to change the state of the heritage, and instantly to convert into moveable estate. The deed remained in the granter's power, and was to have no effect at all, even as a mandate to sell, till his death, and at that moment the succession to the moveable estate fell by law to the sisters, as heirs at law.Speirs v. Sir Alexander Campbell , ante vol. iii. p. 201.Willoch v. Ouchterlony , Dec. 14, 1769, Mor. 5539; House of Lords, ante vol. iii. p. 659.Kyde v. Davidson , Mor. 5597, House of Lords, ante vol. iv. p. 63.It is said that nothing remained with the Duke or his heirs, but a personal right of calling the trustees to account. But this is a mistaken view of that case. The estate itself remained, and was an heritable estate at his death, no matter whether in his own person or in a trustee for him. The right of the trustee was merely nominal. The truster, by means of his trustees, held even the feudal right, i. e . the substantial right. Vide case of Campbell in regard to voting. Suppose it could with propriety be called a personal estate, it was a personal right to lands , which is heritable . The word personal is too often confounded with moveable . The trustees cannot now exercise the power of selling, if the heirs at law choose rather to have the subject itself in kind. Cases of Durie, &c. In short, the ulterior destination has now fallen to the ground, and the mandate contained in the trust-deed has so far become ineffectual. The decided cases are all clear in favour of the pursuer, and the case of Ouchterlony no exception. The last deed having been executed debito tempore , the sole question was, Whether it would be rejected merely on account of its form, that is, because it was in the shape of a latter will, though truly a declaration of purposes. This was what Lord Braxfield alluded to in his observations, p. 35 of the memorial. The case of Kyde he thought different, the will there being a substantive not a relative deed. It is too critical to set aside a relative deed, merely on account of form. The Duke could not reserve to himself the power of dispensing with deathbed.

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The appellants admit that the deed 19th March 1804 was executed on deathbed, and, consequently, that it was liable

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Pleaded for the Respondents .—Because by the common and statute law of Scotland, the person who, in the character of heir, is entitled to succeed to the real property of any species, or the heritable estate of any kind, of a predecessor, or ancestor, as things stand sixty days before his death, may set aside every deed made in that interval, by which his succession is attempted to be defeated or encroached upon, or by which he suffers any prejudice, provided that the ancestor had, at the time of executing such deed, contracted the disease which terminated in his death. That this is an accurate definition of what is styled the law of deathbed , with the modification introduced by the statute 1696, cannot be controverted. The question then is, Whether the respondents, as the heirs general of the late Duke of Roxburghe, could be prejudiced by the operation of that instrument which he is said to have executed on the 19th of March 1804, when it is admitted that he was in a legal sense upon deathbed? Or whether they would reap a benefit by setting it aside? The appellants attempt to maintain the negative, and the respondents venture to assert, that a more desperate attempt has never been made. What the appellants say is, that the Duke had no real estate or interest whereupon that instrument could operate, or which the respondents could take as his heirs, because he had divested himself and his heirs of the whole by the trust deed 5th November 1803, when he was in liege poustie , the state opposed to deathbed. All that remained in him after the

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After hearing counsel, it was

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Ordered and adjudged that the appeal be dismissed, and that the interlocutors appealed from be, and the same are hereby affirmed.Counsel: For the Appellants, Sir Sam. Romilly, John Clerk, Adam Gillies, David Monypenney. For the Respondents, Wm. Adam, Matthew Ross, Wm. Courtenay.