John Duke of Roxburghe v. John Wauchope, Writer to the Signet, sole accepting Trustee and Executor of the deceased John Duke of Roxburghe; and the Reverend Archdeacon Charles Baillie Hamilton, second Son of the late Honourable George Baillie of Mellerstain; Sir William Scott of Ancrum, Baronet, Son and Heir of the late Sir John Scott of Ancrum, Baronet; and Sir Henry Hay MacDougal of Mackerston, Baronet, the Residuary Legatees appointed by the said Duke [1820] UKHL 2_Bligh_619

UKHL
John Duke of Roxburghe v. John Wauchope, Writer to the Signet, sole accepting Trustee and Executor of the deceased John Duke of Roxburghe; and the Reverend Archdeacon Charles Baillie Hamilton, second Son of the late Honourable George Baillie of Mellerstain; Sir William Scott of Ancrum, Baronet, Son and Heir of the late Sir John Scott of Ancrum, Baronet; and Sir Henry Hay MacDougal of Mackerston, Baronet, the Residuary Legatees appointed by the said Duke
[1820] UKHL 2_Bligh_619
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS AND WRITS OF ERROR, And decided during the Session , 1820.1 Geo . IV.SCOTLAND.

No. 17

John Duke of Roxburghe , Appellant v. John Wauchope , Writer to the Signet, sole accepting Trustee and Executor of the deceased John Duke of Roxburghe ; and the Reverend Archdeacon Charles Baillie Hamilton , second Son of the late Honourable George Baillie of Mellerstain ; Sir William Scott of Ancrum, Baronet, Son and Heir of the late Sir John Scott of Ancrum, Baronet; and Sir Henry Hay MacDougal of Mackerston, Baronet, the Residuary Legatees appointed by the said Duke Respondents1820 .legacies he bequeaths the residue to his heirs M. and E. for life, with remainder to other persons therein named; held, that this was not a revocation of the first deed so as to give to the heirs of entail a title to challenge the last deed ex capite lecti ; although the disponees for life, under the second deed, being the heirs general of the disponer, had reduced the death-bed deed on that ground, and thereby, under the doctrine of approbate and reprobate, had forfeited the life-interest given to them by the second deed. had happened they could not fulfil the conditions on which alone the benefit of the disposition could be claimed; 4. because they are not entitled to avail themselves of the right of redemption according to the condition, and under the obligation imposed on the disponees in the first deed, inasmuch as that obligation does not extend to the trustees who take under the death-bed deed.Lands , &c. being limited to heirs of entail by simple destination, a deed was executed in liege poustie in favour of the heirs general of the disponer after his death without issue, with a power to revoke or alter that disposition on death-bed; and a declaration, that so far as it shall remain unrevoked, and not altered by a writing under the hand of the disponer, it shall have the effect of a delivered evident, though, &c. By another deed, executed thirteen years after the first, all the lands, &c. together with the personal estate of the disponer, are vested in trustees in trust, to be sold, and the produce to be applied in payment of debts owing at his death, and legacies, &c. granted or to be granted, &c. (The objects of trust being different from those provided in the former deed) and the trustees are directed to convey, &c. the residue of the whole fund in favour of such persons, &c. as the disponer had directed or should direct by any writing executed, or to be executed, &c. On death-bed the disponer executes a deed of appointment, directing the trustees to convert the whole estate into money; and after giving certain

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Where lands by an instrument in the nature of a will are disponed in trust to sell and pay certain legacies, and as to the residue for such persons as the disponer shall by writing appoint; and afterwards by deed made on death-bed he disposes of the residue, the law of death-bed applies to the case, and the disposition is reducible on that ground, so far as it relates to lands.Lands (entailed by simple destination) being given by testamentary disposition to the sisters and heirs of the disponer, under obligation as to part of those lands, that they should be conveyed by his sisters to the heirs of tailzie, entitled by strict statutory entail to the principal mansion, &c. where the lands subject to the obligation are situated, on condition that a certain sum shall be paid by a certain day by those heirs to the sisters: by a subsequent testamentary disposition, consisting of two deeds, the latter being made on death-bed, the lands of the disponer, including those in question, are vested in trustees upon trust to sell and pay the interest of the produce to the sisters of the disponer for life, &c. who, as general heirs of the disponer, reduced the latter instrument so far as it regarded lands destined to heirs of line, as made on death-bed: held, that the heirs of entail have no title or interest to reduce the same instrument on the same ground as to the entailed lands; nor to call for a conveyance on payment of the sum specified in the condition; 1. because their interest is excluded by the liege-poustie deed, and is not restored, tranferred to, or vested in them, because the disponees in that deed have forfeited or rejected their right under it; 2. because they must claim as disponees or legatees under that deed, and in such character they are barred from challenging the death-bed deed; 3. because in the events which

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John Duke of Roxburghe, in 1790, executed a deed by which he disponed to himself, and the heirs whomsoever of his body, whom failing, to Lady Essex Ker, and Lady Mary Ker, his sisters-german, &c. and the heirs whomsoever of their bodies, &c. and failing both his said sisters and the heirs of their bodies, then to his heir of tailzie, having right for the time to his earldom and estate of Roxburghe, &c. whom failing, to his own heirs and assignees whomsoever, all his unfettered estates, comprising lands destined to heirs of line, and lands descendible to heirs of tailzie, by simple destination, &c. except certain lands in the parish of Kelso, as to which it was provided and declared in manner following, “that the said Lady Essex and Lady Mary Ker, and their foresaids, shall be obliged to dispone and convey to the heirs of entail, having right for the time to my said tailzied lands and estate of Roxburghe, and to the heirs of tailzie and provision, succeeding to them in my said tailzied estate, in terms of the rights and investitures thereof; but also with and under the conditions, provisions, restrictions, limitations, and clauses irritant and resolutive, contained in the said rights thereof; all and whatever lands and heritages within the

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All former dispositions and settlements of his said lands, estate, and effects, are then expressly revoked, and the deed concludes with the following clause:the effect of a delivered evident, though found in my own repositories, or in the custody of any other undelivered at the time of my death.”
“And as I reserve full power and liberty to myself, at any time in my life, and even on death-bed, to revoke or alter these presents, in whole of in part, and to sell, burden, or otherwise dispose of the whole estate, heritable and moveable, hereby disponed, or any part thereof, so I dispense with the delivery of these presents, and declare that the same, in so far as not revoked or altered by a writing under my hand, shall have

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On the 5th of November 1803, Duke John executed a new settlement in the form of a trust disposition and nomination of executors. By this deed, he vested the whole of his unfettered lands, together with all his personalty, in the Respondent, Mr. Wauchope, and other trustees, upon trust, to sell the whole or any part of his real estate, &c. at their discretion, and apply the produce in payment of debts, legacies, &c. given or to be given, &c. The final trust is thus expressed:
“The whole residue, remainder, and surplus of my said estate and effects, shall be conveyed and made over, or applied, and employed by my said trustees or trustee acting for the time, to and in favour of such person or persons, or for such uses and purposes as I have directed, or shall direct, by any deed, missive, memorandum, or other writing, executed, or to be executed by me for that effect, at any time of my life, and even upon death-bed.”
Of the same date, he executed a memorandum relative to the said trust-deed and settlement, whereby he desired it to be understood by his trustees, in case he should be prevented from executing such a deed of appointment as he had alluded to, that it was his wish and intention that the disposition and settlement of 1790 should stand good as far as regarded his sisters the Ladies Ker.Deed of instructions of 19th March 1804.On the l9th of March 1804, Duke John, when upon death-bed, executed a deed of appointment or instructions to his trustees. By this deed he directs them to sell his real and personal estates, and to

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The arrangements made by this deed, as well as by the trust disposition, were in many respects materially different from those of the settlement which had been made in 1790, but neither of them contained any express revocation of that settlement.Duke John dying without issue, the disposition as to the unentailed lands was reduced by judgment of the Court of Session at the instance of the Ladies Ker, in their character of heirs of line to the disponer.Duke John was succeeded in the entail by Duke William, who did not challenge these settlements.Duke William was succeeded by the Appellant, James Duke of Roxburghe, who brought an action of reduction and declarator to set aside these settlements. The summons recites the title of the pursuer as heir of entail, and the before-mentioned deeds, and concludes, 1st, that it ought to be found and declared that “John Duke of Roxburghe did, by the execution of the deed of the 19th of March 1804, effectually revoke and recal the foresaid deed or instrument executed by him in liege poustie , on the 14th day of October 1790, as well as the foresaid writing or memorandum of

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In this action, the Ladies Essex and M. Ker, the Respondent Wauchope, the only trustee who accepted and acted in the trusts of the deeds of 1803 and 1804, and the Respondents the residuary legatees were called as defenders. No appearance was made for the Ladies E. and M. Ker; but the Respondents having put in defences, and the case having been discussed before Lord Alloway, Ordinary, the following interlocutor was pronounced:—Interlocutor of the 18th Feb. 1814.his whole heritable and moveable property, by paying certain legacies, and dividing the residue of his fortune among certain residuary legatees; finds, that the right of challenging upon the head of death-bed, is only competent to the next heir of investiture having an interest, and who, in virtue of the death-bed deed being set aside, would succeed to the lands and heritages therein contained; finds, that if the death-bed deed in question were set aside, the deed 1790, which is not expressly revoked by the death-bed deed, must exclude the succession of the heirs of entail; and that the pursuer, James Duke of Roxburghe has no interest, as the heir of investiture, to insist upon the reduction of the death-bed deed 1804; and therefore assoilzies the defenders from the general conclusions of the reduction: And with regard to the particular conclusions, as to that part of the lands situated in the parish of Kelso, the investiture of which formerly stood to the heirs of entail, but which were again conveyed by the deed 1790 to the Duke's sisters, and which deed contains an obligation upon his sisters to convey these lands to the heir of entail, for the time being, upon his discharging them of all claims whatsoever against them, as the Duke's representatives, and making payment to them of 3,000 l . sterling, at either of the two first terms of Martinmas, next after his death; finds, that the right to these subjects was actually conveyed to his sisters; and that therefore the right and interest of the pursuer as heir of investiture, to challenge the death-bed deed in 1804, was expressly excluded by the deed in favour of Ladies Mary and Essex Ker in 1790; finds also, that the pursuer has no right to challenge the deed in question ex capite lecti , as to these lands, and assoilzies the defenders, and decerns.”The Lord Ordinary having considered the mutual memorials for the parties, and the whole process, finds, that John Duke of Roxburghe, when in liege poustie , conveyed his whole unentailed subjects of every description to Lady Essex and Lady Mary Ker, his sisters, and their heirs in fee-simple; but with a destination, upon the failure of his sisters and their heirs, to his heirs of entail, and with a power to revoke and alter that deed, even on death-bed; finds, that the heirs of entail, in so far as they were the heirs of investiture of any parts of these lands, were completely excluded by that liege-poustie deed, in favour of his sisters; finds, that Duke John afterwards executed in 1803 a conveyance of his whole heritable subjects, not limited by the entails, to John Wauchope and James Dundas, as trustees for the purposes therein mentioned; finds, that upon the 19th March 1804, John Duke of Roxburghe, when upon death-bed, executed a deed of instructions, directing the trustees to distribute

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Interlocutor of the 11th July 1815.A representation was given in by the Appellant this judgment; upon advising which with answers, the following interlocutor was pronounced:
“The Lord Ordinary having considered this representation, and the answers thereto, together with the whole process, refuses the representation, and adheres to the interlocutor complained of, in so far as relates to the general findings; but with regard to the alternative conclusion, as to the lands in the parish of Kelso, appoints the cause to be enrolled, and parties to be heard further upon this point; and particularly desires that the interlocutors in the process, which formerly depended before Lord Balgray, be produced in process; and that the pursuer shall also particularly condescend upon these lands in the parish of Kelso, as to which the investitures formerly stood to heirs of entail.”
Interlocutors of the 14th Feb. 1816.The Appellant represented against this judgment. The Lord Ordinary appointed the representation to be answered, and ordained a condescendence to be lodged on the special point, respecting the lands in the parish of Kelso. Thereafter, on advising these papers, the following interlocutor was pronounced:

of;”

“The Lord Ordinary having considered this representation, and the whole process, after having heard parties, refuses the representation, and adheres to the interlocutors complained

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and of the same date he pronounced this other interlocutor, as to the lands lying in the parish of Kelso:
“The Lord Ordinary having again resumed consideration of this process, with regard to the lands lying in the parish of Kelso; in respect that the former investiture of these lands, in so far as it stood in favour of the heir of entail, was altered by the deed 1790, executed by John Duke of Roxburghe, in liege poustie ; and that the representor cannot claim any benefit from that deed without being subjected to all the conditions contained in it, as a disponee or legatee, in which character he was barred from challenging the death-bed deed in question; and as he cannot now fulfil the conditions on which alone he could claim the benefit of that deed, refuses this representation, and adheres to the interlocutors complained of.”
4 July, 1816.The Appellant petitioned the Court of the first division against these interlocutors; but the Lords “adhered to the interlocutor reclaimed against, in so far as it finds that the pursuer is barred by the deed of 1790 from challenging the death-bed deed of 1804, and that he has no right to challenge that deed ex capite lecti , as to any lands to which he would have had right as heir alioqui successurus ; and further find, that the pursuer, the Duke of Roxburghe, is not entitled to avail himself of the right of redemption of the Kelso lands contained in the deed of 1790, inasmuch as the obligation therein contained is not imposed on the defenders by the death-bed deed, under which they take these lands.”

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Another petition was presented to the same division, but the Court adhered to the interlocutor.From these several interlocutors the Appeal to Parliament was presented.For the Appellants, Mr. C. Warren and Mr. Wetherell :The first question is, whether an implied revocation is sufficient to destroy a deed executed in liege poustie? By principle of law a subsequent deed, which is inconsistent with a prior deed, effects a revocation; so in the same instrument the last provision, and in different instruments the last in date, is operative and destroys the former. The deed of 1804 is explanatory and directory, and taken with that of 1803 they give the subject-matter to new disponees, and thereby declare that the dispositions of the deed of 1790 are altered. In the English law, which stands on the same principle, where the donee of a power alters the uses before limited, it is a revocation in law. So where a testator makes a later will inconsistent with an earlier will, it is an implied revocation * . According to these principles the deed of 1790 is revoked by the deed on death-bed, which is void for every other purpose but that of revocation. So by the law of England, and in principle, a subsequent will or instrument which is void for informality, or ineffectual on account of the incapacity of the devisee or donee, effects an implied revocation; as a devise to A. and afterwards to the poor of the parish, or to a corporation, or a papist; the second devise is void, and the first revoked.

Footnote

* Powell on Devises , vol. 2, p. 132.

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It is said to be inconsistent to suppose the deed invalid as made on death-bed, and yet to use it as a valid deed for the purpose of revocation; but it is used as showing the intention to revoke, and is efficient for no other purpose. Thus where a devise was made to B. and afterwards the devisor by deed poll granted the lands to his wife, that grant was held void. But although nothing passed by the deed, it was held to be a revocation * . So it is in the case of a feoffment without livery, and a bargain and sale not inrolled † .An implied revocation is as powerful in law as an express revocation. By the law of Rome and of England as to personalty, a will is revoked by a second will inconsistent with it. The law stands on the principle of presumed intention, and is equally applicable to land. The authorities on this point, from the civil law, which is the fountain of the law of Scotland, are decisive ‡ .The failure or non-existence of the heir named in the last testament does not annul it as a will, and restore the former will §. If, indeed, no heir is

Footnote

* Beard v. Beard , 3 Atk. p. 72.† 1 Roll. Abr. 615, Vin. Dev. (P.) pl. 6, 3 Atk. 803. So an incipient act not perfected, as the making a tenant to the præcipe towards suffering a recovery without further proceeding, revokes a will. See Harmood v. Oglander , 6 Ves. 199; and formerly the grant of a reversion without attornment had the same effect.—See Wentw. Off. Ex. 22.‡ Heineccius ad. Inst. § Dlxxiii . ad. Pandect, vol. 2, p. 11. §. 30; (L. 1, l. 2, ff. § 2, § 7. Inst. h. t. l. 27, C. de Test)— de Test)— (L. 4, ff. De Adim. Leg .)—(L. 6, § 2, ff. De Jure, Codicill . § 2, Inst. L. 16, ff. h. t.)—L. 27, C. de Testam .)—(L. 1, § 6, ff. De bon. poss. sec. tab .)—(L. ult. ff. h. t.)§ Heineccius, qu. sup. note to s. 30, L. 1. ff h. t.

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So Voet § states the law to be, that although there must be a possibility of inheritance under the second will to make it effectual as a revocation, it is not necessary that the inheritance should vest. The former testament will be equally revoked, although the latter will is rejected by the heir named in it, or because he dies before the testator, or the condition of the gift fails || . From which it follows, that a testament once revoked by a second testament remains void, although the later will is afterwards rescinded by law; and this is equally true where the second will is revoked by a subsequent event, as by the birth of a posthumous child ¶ .These instances are precisely similar to the case of revocation by the event of death within the time limited by law. The deed is valid when made, but

Footnote

* L. 11, ff. h. t.† L. 16, ff. h. t.‡ L. 16, § 1, ff. De vulg. et pup. subst .§ Vol. 2, p. 288, lib. 28, tit. 3, s. 5.||Inst. quib. mod. infirm. test. 16, ff. h. t.¶L. 12, § 1. ff. de bonor. possess. contra tab. or where the testator destroys the latter will with a view to make the former valid, as being the last will in existence. Heinec. ad Pandect . Pars. v. § 32. But in this doctrine the civil law appears to differ from the law of England where the latter will has not expressly revoked the former. Semb . See Goodright v. Glazier , 4 Burr. 2512. Peck. 210, 44. Ass. pl. 36. M. 44. Ed. 3. 33. Doug. 40. Burtenshaw v. Gilbert , Cowp. 49.

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It is supposed that the rules of the civil law are inapplicable, because the case relates to death-bed; but the true point in question has nothing to do with the law of death-bed, which is peculiar to Scotland; but to the effect of a later deed or will as to revoking a former deed or will, and this question of revocation is not peculiar to the law of Scotland, but is a point of general law and of the civil law, as the foundation of the law of Scotland.By that law a second testament annuls the first, and makes it ineffectual * . It is a revocation, and not a conditional substitution. So with respect to a legacy given to a different person by a posterior will † , the right cannot revive in the first legatee by the event of the death of the second. Bankton ‡ on the subject of implied revocations, says, “voluntary alienation of the thing bequeathed, or willingly uplifting a bond, and not employing, will infer revocation. But it is otherwise if the alienation was necessary, or the debtor forced the payment, and the money was re-employed on a moveable security. In this the testator will be presumed only to have been exercising lawful acts of administration, but not to have intended to prejudice or recall the legacy. A transfer of the legacy from one to another, &c. will infer a virtual revocation.”

Footnote

* Ersk. Inst. B. 3, tit. 9, s. 5.† Stair, Inst. B. 3, tit. 8, s. 3.‡ B. 3, tit. 8, s. 53.

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The deed in question contained an express power of revocation, but mortis causa deeds are revocable in their nature; and whether they relate to real or moveable property, in this respect is immaterial; for the question turns upon the intention of the testator or disponer, to be inferred from his acts.But the case is supposed to be concluded by authority, and the Respondents admitting that it may be difficult, on principle and by reason, to support the law as they represent it to be, contend that it is settled by decision, and not now disputable. To support this position they cite the cases of Irving v. Irving † ; Finlay v. Birkmire ‡ ; Alexander Telfer § ; and Rowan v. Alexander || .But the cases are not applicable to the question; for in the first it was merely decided, that a death-bed-deed renewing a previous disposition in favour of the same disponee, as the previous liege poustie deed did not operate as a revocation. No question was raised, as in this case, whether an implied was not equal to an express revocation; and whether such revocation was not effected by a subsequent deed altering the disposition of a preceding deed. In Finlay v. Birkmire the revocation was express, and therefore not applicable to a question of implied revocation. The case of Alexander Telfer is not reported, but

Footnote

* B. 3, t. 9, s. 6.† Nov. 1738, Kilk. Voce Death-bed, p. 145.‡ Fac. Coll. July 29, 1779.§ Not reported. July 14, 1806. See the report of Craufurd v. Coutts , in the note at the end of this case.|| 22d Nov. 1775, D. P.

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As to Rowan v. Alexander , it is a single case, decided upon a difference of opinion; it is contrary to principle, and has not been followed in practice. The Respondents suppose it has been confirmed in the case of Coutts , * but the fact is otherwise. It was a case of express revocation, and Lord Loughborough in moving judgment, alluding to the case of Rowan v. Alexander , said, he did not agree with the Court of Session in the distinction made by them in that case between express and implied revocation. According to the opinion of Lord Loughborough, expressed in the case of Coutts , a second disposition, inconsistent with the first, operates per se as a revocation. Being of this opinion, he could not have thought Rowan v. Alexander a correct decision. In the same case of Coutts , Lord Eldon said, “he concurred with Lord Rosslyn, that it would have been impossible for him, on appeal, to have acceded to the judgment of the Court of Session, in the reversing of the decision of the Lord Ordinary in Rowan v. Alexander .” The authority of the case is impeached by these judicial observations; it has been followed by no similar judgment, and is not supported by the practice of the courts or of conveyancers. When the case of Craufurd v. Coutts again came before the House in

Footnote

* Craufurd v. Coutts , D. P. 1799. See the note at the end of this case.

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If the words “I revoke,” had been used by the disponer, the revocation is admitted, although the deed is reduced on the head of death-bed. But is there any peculiar virtue in these words, surpassing the effect of an act of revocation done in pursuance of a preconceived intention? A power to revoke being previously reserved, a new disposition is made, giving the lands to new disponees. How a revocation can be more effectually made it is difficult to conceive. The act itself is conclusive to show the intention of the disponer; and in addition to this, the memorandum signed after the execution of the first deed of trust shows that the deed of 1790 was considered by the Duke as revoked. For on no other supposition could it be necessary to provide, as he does, by the memorandum, that the deed of 1790 should remain effective, if he should make no appointment under the powers of the trust-deed.In that memorandum the power is expressly recited, the future exercise of the power is contemplated, and upon the supposition that the general deed of trust operates as a revocation, a provision is made to counteract that effect. The deed in liege poustie is therefore by implication revoked, and does not interfere with the right and title of the Appellant to reduce the deed made on death-bed, which, though void in law, may be used to show the intent

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2. The deed in question cannot interfere with the right of the Appellant, because it became ineffectual by the rejection of the disponees in that deed. The right of the heir to reduce a deed on death-bed cannot be taken away by a deed in liege poustie , unless a valid right is thereby constituted in some third person, and made effective by acceptance. A deed merely disinheriting the heir, or made in blank to be filled up in lecto , is inoperative. The former case is self-evident; the latter is decided by the case of Pennycook † ; although it appeared in evidence that the testator, being in liege poustie , had declared that he intended to fill the blank with the name which was inserted in lecto . So, in a case where the name of the disponee had been inserted in liege poustie , but in a blank left at the time the domicile was afterwards added on death-bed, the disposition was held incomplete and ineffectual to exclude the heir from challenging the deed on death-bed ‡ . So deeds executed in liege poustie in favour of the heir, with a power reserved to revoke and redispone on death-bed, do not exclude the title of the heir to reduce; because no effective right is established in a third person, and the power reserved is a fraud upon the law: it is the assertion of a faculty and judgment to dispose on death-bed, which the law denies. If such

Footnote

* Moore v. Moore , Phill. Rep. 412; and cases there cited.† Fount. Jan. 18, 1687. See Brudenell v. Boughton , 2 Atk. 270.‡ Buchanan, 1683. Harcarse, Lectus Egritudinis, p. 182.

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3. If the deed of 1790 is not revoked, the appellant may reduce the death-bed deed for the purpose of claiming the lands of Kelso. It is objected that by the former deed he is barred from challenging the latter. That might be so, if the disposition were made to a stranger; but the ancestor cannot, by this contrivance, take away the right of an heir alioqui successurus , to challenge the deed on death-bed.

The Ladies Ker, to whom the lands of Kelso

Footnote

* Hepburn v. Hepburn , 25 Feb. 1663. Stair. Davidson v. Davidson , 17 Nov.1687. Fountainhall.

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The objections as to the Kelso lands, that the condition is not imposed on the disponees in the death-bed deed, and that it contains no disposition in favour of the heirs, must be admitted as facts; but the question of law returns, whether the heir is not entitled to reduce the death-bed deed? A gift

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It is objected, that as to the Kelso lands, the Appellant in his summons founded on his right, under the disposition of 1790; but he founded mainly on his right as heir of investiture, a right which appears on the face of that deed; and if the fact were as contended, the rules of Scotch

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For the Respondents:— The Attorney General and Mr. Clerk. *

The lands which are the subject of controversy were settled by simple destination, without fetters, upon the heirs of entail of the Roxburghe family. These lands were given by the deed of 1790, a deed inter vivos to the Ladies Ker, upon conditions; one of which is, the power reserved to revoke and alter. That power existed without reservation; but the clause dispensing with delivery is considered necessary where the author intends to keep the deed in

Footnote

* Since raised to the Bench of the Court of Session, under the title of Lord Eldin.

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Arguments drawn by analogy from the law of England are dangerous to be applied in deciding on questions of the law of Scotland. By the law of Scotland, a person possessed of an hereditary right, without fetters, has power to dispose in liege poustie ; he may reserve a power of revocation on death-bed. It is admitted that by the same law a person cannot on death-bed dispose of heritable property to the prejudice of his heir.The Duke of Roxburghe had complete dominion over the property in question, of which he made a disposition by the deed of 1790. If this had been the only instrument executed by him, it is not disputed by the Appellant that it would have been a good disposition. By that deed he reserved a power to revoke on death-bed; by the deed of 1803 he gives the whole residue of his estate and effects, consisting of realty and personalty, in trust for such persons and uses as he had directed or should direct by any deed thereafter to be executed.

It has been argued at the bar that this deed alone

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To reduce a death-bed disposition, it must be to the prejudice of the heir, and no one else can question

Footnote

* Ante, Vol. 1. p. 1. The passage is not reported. It probably occurred incidentally in stating the facts of the case.

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If there has been a liege poustie disposition to a stranger, the heir at law cannot question the death-bed disposition; although on death-bed a disposition in favour of the heir may so far he made as to revoke a liege poustie disposition made against him † .A party may by a liege poustie deed reserve a power to alter on death-bed. The arguments on the other side would show, that a death-bed disposition operates as a revocation of the liege poustie deed. Rowan v. Alexander is not the only, nor even the first case on the subject. It was both preceded and followed by others decided on the same principles. In Ker v. Ker ‡ , a deed made partly in favour of a grandchild, the son of the second son of the disponer, was delivered by him sub silentio to a stranger. The disponer afterwards, on death-bed, required the depositary to redeliver the deed, and having obtained possession of it, delivered it to a notary, to whom he also gave two blank papers, with his signature, desiring him to fill up the one with a disposition to his second son, the other, with a disposition to the only daughter of his eldest son, who was dead. Upon these facts it was held, that the first delivery was conditional, and that the recalling was effectual, although made on death-bed; seeing thereby the heir had no prejudice, since, if the death-bed deed were reduced, the former liege

Footnote

* Regiam Majest. Stair. Erskine's Princ. of the Law of Scotland.† See Craufurd v. Coutts . Post .‡ Stair, p. 474. 499. Dict. of Decis. 3250.

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In Craufurd v. Coutts there was an interval during which the right of the heir at law revested in him. But where there is a virtual revocation there is no such revestment † . In M'Kean v. Russell , where a creditor having taken a bond payable to himself, if living, and after his decease to persons therein named as substitutes, with a power reserved to him at any time of his life to receive and discharge the same, without consent of the substitutes, exercised the power on death-bed by disponing the bond to persons not being either the substitutes or his heirs at law; this disposition being questioned, in an action of reduction upon the head of death-bed, it was argued for the heir, that the death-bed deed annulled the substitution, and revested his right; and although by the same act the subject was disponed to strangers, the alienation was ineffectual as against him, being done on death-bed. But these reasons of reduction were repelled by the court ‡ .As to Rowan v. Alexander , it is said the property was but small, and the question not much discussed in the court below. The case was fully argued both there and in this house. The liege poustie deed in that case was most materially altered

Footnote

* By implication under the circumstances of the delivery.† Ker v. Ker , 9. s.‡ Dict. of Decis. Death-bed, p. 3277.

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It is admitted that by a death-bed disposition the liege poustie deed may be burdened; what is that but a revocation pro tanto? Rowan v. Alexander was decided in 1775. Many estates are held upon the law as settled by that case.

It was followed by the case of Donaldson * . On

Footnote

* Donaldson v. M'Kenzie , 20th July 1776. The case is not reported. The following is a short outline of the facts, pleadings and judgment:—John Donaldson, bookseller in London, adjudged certain subjects in the neighbourhood of Edinburgh as belonging to Alexander Thompson. In that process, Mrs. M'Kenzie of Redcastle, daughter of James Thompson, by a second marriage, appeared, and insisted that the subjects sought to be adjudged belonged to her; and to prove this to be the fact, she produced, 1st, A mutual disposition (1768) between her father and mother, disponing to themselves, and to Mrs. M'Kenzie and her heirs, their whole heritable and moveable estate. 2dly, A holograph deed, dated 13th Sept. 1769, by which James Thompson conveyed to her the subjects in question. 3dly, A trust disposition by James Thompson, with consent of his spouse, conveying his whole estate to trustees for certain purposes therein expressed. This trust disposition was executed in lecto , and Mr. Donaldson insisted that the trust deed should be reduced upon that ground, in as far as it was prejudicial to Alexander Thompson, the heir of his father. As to the holograph deed, Mrs. M'Kenzie could not prove its date; and of course it was held to have been executed in lecto . And lastly, with regard to the mutual disposition of 1768, Mr. Donaldson insisted that it was revoked by the trust disposition.Lord Monboddo, Ordinary, repelled this plea of Mr. Donaldson, who reclaimed to the court; putting his cause upon the following points:—
“That both in law and in equity he is entitled, as creditor to the heir apparent, to insist, 1 mo , That the mutual disposition and settlement founded on is effectually

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The case of Craufurd v. Coutts was decided on the ground that an express revocation revested the right in the heir, and then the death-bed deed was to the prejudice of the heir. The Lord Chancellor in that case held * , that at the time of the death-bed disposition there was no effectual liege poustie deed in existence.

Footnote

revoked by the trust disposition; and 2 do , That he is entitled to reduce the said trust disposition ex capite lecti , without giving effect to the former deed; or in other words, “to use the trust disposition to cut down the former settlement, and thereafter to reduce the same disposition as executed on death-bed.”In support of the last of these propositions, Mr. Donaldson founded, at great length, upon the case of Cunningham * ; insisting that it was a well-founded decision; but, on moving his petition, the court was of opinion that the case of Cunningham was erroneously decided. Lord President Dundas and Lord Corrington said, that they knew the history of that cause very well; that before it came to be heard at the bar of the House of Lords, the parties understood that Lord Hardwicke, then Chancellor, thought that the interlocutor of the Court of Session was ill-founded; in consequence of which understanding the matter was compromised by payment of a large sum of money. When counsel were called to the bar the cause was not argued; but it was stated that the matter was made up, and that both parties concurred in wishing the decree to be affirmed. Upon which Lord Hardwicke observed from the woolsack, that the Respondent had done wisely in not risking a judgment, and thus the interlocutor was affirmed.* See note at the end of the Case.* Cunningham v. Whiteford Falconer , 10th June 1748.

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In the court below, Lord Gillies, in the disscussion of the present case, said, as to the case of Rowan v. Alexander , “That even if wrong it ought to be upheld;” and he conceived “that there was a great difference between implied and express revocation.” The term, “implied revocation,” cannot properly be applied to this case: according to the law of England it always proceeds upon the supposition, that the grantor has power to grant. There is no case in which it has been held that a deed executed by a person having no power can be a revocation. By the law of Scotland, upon a deed inter vivos , such as the liege poustie deed in this case, a power being reserved to alter on death-bed, it could only be altered by express exercise of the power; and the execution of a subsequent deed, which is destroyed by legal challenge, was never in that law held to be such an exercise of the power. That implied revocations have the same effect in law as express revocations, is a doctrine contradicted by authorities in the law of Scotland, showing that parties whose interest it was to contend for that doctrine, and who must have succeeded if it had been well founded, never thought of resorting to it as an argument in support of their claims * . The distinction between express and implied revocations is established by the cases of Rowan v. Alexander and Craufurd v. Coutts † . On that point the Judges of

Footnote

* See Kilkerran, p. 151, Finlay v. Birkmyre , 29th July 1779. Case of Telfer, Jan. 14, 1806.† See also the opinion of Bankton, upon a case stated by him, B. 3. tit. 4. s. 49.

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There is no such head in the dictionary as implied revocation, and the term itself is foreign to the law of Scotland. The cases of presumed revocation are totally different; as where a legacy is given, and the subject of the gift is afterwards disposed of otherwise; or where a specific legacy is followed by a general disposition of all the funds, including that legacy: there it is rather a question of preferable disposition than of implied or even presumed revocation. If by law the disponer has the power on death-bed to substitute a new object of his bounty in the place of the liege poustie disponee, how is that end to be effected? According to the argument of the Appellant, on the doctrine of implied revocation, the attempt to make a new disposition operates to displace the right of all the disponees, and gives the benefit to a party excluded by the author. Such a doctrine, if admitted, could only have the effect to prevent any disposition after a deed in liege poustie .It is to be observed, that the deed of 1790 conveyed no right to the disponee at the time of its execution. It was an undelivered deed, kept in the repositories of the author, and containing an express reservation of power to revoke. The effect of such a deed is suspended, both as to the heir and the disponee, until the death of the author. In a testamentary instrument, the event of death operates as a delivery. If it be revoked, the right of the heir revives, or rather remains unaffected. But how is the power of revocation to be exercised? Erskinc *

Footnote

* B. 3. tit. 8. s. 98.

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If the analogy of English law is to prevail, the question is decided by the case of Goodright v. Glazier * , which is law, notwithstanding the case of Moore v. Moore † . A second will being cancelled sets up the first.As to the cases from Rolle's Abridgment, they are on the ground that an alteration in the estate has taken place, which alters the seisin; so that, technically, the party has not the same estate. That rule of law depends on the words of the statute of wills.The case in Cowper ‡ was decided on the ground of express revocation, by one of the modes prescribed, and having operation according to the

Footnote

* Burr, p 2512.† Qua Supra .‡ Burtenshaw v. Gilbert , p. 49.—In this case there were two parts of the first will, one of which being in the possession of the testator was cancelled; the other, being a duplicate, in the possession of a depositary of the testator, was found uncancelled in the room where the testator died. The opinion of the court was, that both parts were cancelled by the cancellation of one.

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In the cases of Pennycook v. Thomson , Hepburn v. Hepburn , and Davidson v. Davidson , there was no previous deed in liege poustie to exclude the heir. In the first the deed was signed blank, and filled up on death-bed with the name of the disponee.If the gift were to a person incapable of taking, the case might be different; and if, even to a dying person, according to the extreme case put by the Appellant, a question might arise, whether such deed were not null and void, as fraudulent and fictitious? Cases of fraud are decided upon the peculiar ground of fraud.If there have been no cases on implied revocation since the decision in Rowan and Alexander , it must be on the ground that the law is considered as settled. Here is no express revocation as in Craufurd v. Coutts , but on the contrary, a reference to the previous deed, which is evidence that the interest of the heir is cut off; and if revoked in any sense, can only be to the effect of transferring the estate and right to the new disponee. If implications are to prevail, there is, with other implications, an implied assignation to the liege poustie deed, to make the gift to the new disponee effectual.It has been argued that the Ladies Ker having repudiated the deed of 1790, the title of the heir at

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By the deed of 1790, the Kelso lands are given to the Ladies Ker to convey to the heirs of entail, on payment of a certain sum on a given day. This confers no right upon the heir in his representative character. It is a privilege affecting the lands, whether entailed or unentailed. As heir of entail he could have no claim to unentailed lands; and, with respect to lands entailed by simple destination, he was excluded by the deed on death-bed. It is argued, that by the operation of that deed he is remitted to the right under the deed of 1790. But in what character is he to maintain that right? not as heir, but as disponee. The legacy of a right to purchase the lands was displaced by a subsequent disposition. By the deed of 1790, the heirs of entail were put out of the investiture of the lands. Suppose the disposition had been in favour of heirs of line, could the heirs of entail have raised a claim? To support such claim the heir must be a person who is deprived of the estate by the death-bed disposition. But in this case he was deprived by the previous deed of 1790. The claim must be supported on the ground that by the will they have a right as heirs of entail; but it is no right to the lands; it is a mere personal obligation on the Ladies Ker, the disponees. The offer was to be made within the time limited by the deed, which has not been done, and it is now too late.

The Lord Chancellor :—

[In the course and at the conclusion of the argument.]

Testamentary deeds executed in liege poustie

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On the points as to the repudiation and the Kelso estates, the judges of the Court of Session having differed, it is necessary that those questions should be accurately considered. As to the question of implied revocation; if we are to act on the maxim of stare decisis , the judgment cannot be disturbed. The deed in liege poustie reserves a power of revocation; by making another disposition under the authority of the power, it must be supposed that the disponer intended to do something effectual; and it cannot be implied that by the exercise of the power he meant to revoke it.25 May. 1820.

The Lord Chancellor :—Having looked carefully into this case, I can see no sufficient reason for saying that this judgment should be altered. It appears to me, upon the best consideration I can give to the case, that upon all the points controverted at the bar the Respondent is right.

Judgment affirmed.