Earl of Minto v. Sir William F. Elliot, Bart. [1825] UKHL 1_WS_678

UKHL
Earl of Minto v. Sir William F. Elliot, Bart.
[1825] UKHL 1_WS_678
Circumstances under, which a Scotchman, having sold a part of his landed estate, and invested a portion of the price in the public funds, and intimated to an heritable creditor in London his intention of paying the debt in six months; but having died before the expiration of that period, and consequently before payment;—Found, (affirming the judgment of the Court of Session), That the deceased's residuary legatee was bound to free and relieve the landed estate, and the heir of entail, of that heritable debt.The late Right Honourable William Elliot of Wells, born, educated, and domiciled in Scotland, had succeeded to, and purchased considerable landed estates in the county of Roxburgh. He entailed the baronies of Hadden and Ormiston in favour of himself, and the heirs-male of his body, whom failing, in favour of certain other substitutes, binding and obliging himself, and his heirs-at-law, and his executors and successors, to free and relieve the entailed lands, and the heirs of taillie who should succeed thereto, of all debts to which the entailer should be liable at the time of his death; reserving power, at any time of his life, and even on deathbed, not only to alter the order and course of succession as to the heirs of taillie, and to revoke or alter all or any of the conditions, provisions, &c. but to sell, alienate, &c.; declaring, however, that no revocation or alteration should be inferred by implication or construction, but only from an express writing under his hand, or under the hand of a person duly authorized. Of the same date, and on the narrative of having executed the deed of entail, he executed a general trust conveyance of all his lands and effects, heritable and moveable, wherever situated, with power to borrow money, and to sell the unentailed property, and also the baronies of Hadden and Ormiston, if the trustees should find it necessary, for payment of his debts, and for the other purposes of the trust. These purposes were, 1st, Payment of deathbed and funeral expenses, expense of executing the trust, and recording the deed of entail. 2d, Payment of an annuity of L. 400 per annum to the heir of entail in possession for the time, till the expiry of the trust. 3d, Payment of all just and lawful debts then due and owing by the testator, or which should be due and owing by him at the time of his death. 4th, Payment of legacies. 5th, Redemption of the land-tax. 6th, The purchase of the teinds of the barony of Hadden. To prevent the trust lands from being either unnecessarily, or under disadvantageous circumstances,

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Thereafter, in December 1809, Mr Elliot executed a supplementary deed, which inter alia limited the annuity of L. 400 to L. 100; and, “2do, In order that my said trustees may be the better enabled to satisfy and pay such debts as shall be owing by me at the time of my death; as also the legacies and annuities as I may hereafter appoint to be paid; and, in general, that they may be enabled the more speedily to accomplish the purposes of the said trust, without having recourse to a sale of that part of my entailed estate which, by the said trust-deed, is allowed to be sold, or any part thereof; as it is my most earnest wish and desire, and which, though expressed in the said trust deed, I here anxiously repeat, that the said debts and others may be gradually satisfied and extinguished out of the rents and profits of my said entailed estate, and any other funds falling under the said trust; and that a sale of any part of my said entailed estate allowed to be sold, if it can without great inconvenience and disadvantage be avoided, may not take place; but at the same time always giving to my said trustees full discretionary powers of judging and acting in this matter as to them shall seem fit.” He then grants certain legacies, and proceeds thus:—
“And whereas I am possessed of certain funds and effects situated in England, which I may dispose of by a deed in the English form, therefore I hereby declare, that any such deed executed by me, and unrevoked at my death, shall carry right to said funds and effects situated in England, so far as thereby conveyed, settled, or bequeathed; and the same shall not be held or considered as falling under my aforesaid trust-deed.”
And he concludes by ratifying the original trust-disposition. Accordingly, in 1816, he made a will in the English form, in which, after certain special legacies, there follows this clause:—bequeath unto the Right Honourable Gilbert Earl of Minto, (on condition of paying certain additional legacies); and I do hereby appoint the said Gilbert Earl of Minto, and Ambrose Glover, executors of this my last will and testament; and I also confirm the entail and trust-deed by me already made of my Scotch estate, and of my property in that part of Great Britain called Scotland.”
“All my books, and whatsoever other property and effects I may die possessed of in England, I give and

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Mr Elliot was due to the late Arthur Balfour L. 15,000, by heritable bond over Ormiston and Hadden, (payable in London), and which now vested in the person of John Crawford Balfour of Portland-place. Another sum of L. 5000 was due to Sir Robert Preston. In 1818 Mr Elliot sold the estate of Ormiston to Mr Mein for L. 28,000, of which L. 16,000 was, at Mr Elliot's desire, remitted to London; and the correspondence which took place shews, that his object was to pay off the bond debt due to Balfour. Thus in June 1818 he wrote Mr Ker,—“Upon due consideration of all the circumstances of the case, and of Messrs Brodie and Imlach's opinion, I will take L. 28,000 for Ormiston, provided Mr Mein defrays half the expense of the conveyance, and consents to pay the whole or L. 16,000 of the purchase-money in London.” This condition Mr Elliot repeated to his agent Mr Brodie. Mr Mein's man of business accepted the offer, (1st July), observing, “Mr Mein will remit to Mr Elliot's banker in London, as part of the price of the lands, in fourteen days, L. 16,000.’ Of the same date Mr Brodie wrote Mr Elliot, “By the offer you will observe Mr Mein is to pay L. 16,000 of the price in London, within fourteen days of this date; and he proposes to pay the remainder at any time he may find convenient for himself by Martinmas first, by instalments of L. 1000. I presume you mean to apply the L. 16,000 in payment of Mr Balfour's bond, in which case it will be proper, in case a bargain is concluded with Mr Mein, to give immediate intimation to Mr Balfour.” In answer, Mr Elliot wrote,—“As it was understood between Mr Balfour and myself that he was to have six months” notice whenever it might be my intention to discharge his mortgage, I shall lose no time in making the intimation whenever I hear from you that the bargain with Mr Mein is finally settled. You will recollect that Ormiston is part of Mr Balfour's security; but I suppose that this circumstance will not impede the progress of the disposition, and my final adjustment with Mr Mein. If the sale is settled on, I wish the L. 16,000 to be placed to my credit in the hands of Messrs Drummonds, Charing-cross. When this is done, I shall have to consider in what manner I

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Mr Mein was desirous of having Ormiston freed of the burden, but Mr Balfour refusing to restrict his security, a Mr Ainslie advanced the money, took a conveyance to the debt, and restricted his security to the other lands burdened along with Ormiston; and thus Mr Mein held Ormiston disencumbered.A question now arose between Lord Minto, the executor under the English will, and the trustees in Mr Elliot's trust-deed and Sir William F. Elliot, the heir of entail in the Scotch estates. Sir William filed a bill in Chancery, for the purpose of getting the money in the funds transferred to him; but no judgment was pronounced, the Vice-Chancellor having intimated an opinion, that the question was one which ought to be tried under the law of Scotland, and before a Scotch Court. Lord Minto then brought an action against the trustees and Sir William in the Court of Session, concluding “that neither the trustees under the foresaid deed of trust, and other settlements relative to the testator's Scotch property, nor the heirs of entail under the foresaid deed of taillie of Wells and others, have any right or interest in or to the said property or funds which belonged to the testator at the period of his decease, and situated or lodged in England, the same, by the aforesaid declaration contained in the said supplementary settlement, being specially exempted from the operation of the said trust-deed: and it ought further to be found and

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Informations having been ordered to the Court, their Lordships were equally divided in opinion; but on Lord Robertson having attended, the Court found, by the narrowest majority, “that neither Sir William Elliot, and the heir of entail of the estate of Wells, nor the trustees under the settlement executed by the late William Elliot of his Scotch estates, are entitled to relief from the Earl of Minto, as executor under the English will, of any debts or obligations which, by the law of Scotland, are burdens on the heritable estate of the said William Elliot.” The case was again taken up on petition and answers, when the Court being again equally divided in opinion, Lord Pitmilly was called in, and the Court, by the narrowest majority, altered the interlocutor complained of, and found, “that the Earl of Minto is bound, out of the funds coming into his hands as executor under the English will, to free and relieve the petitioner, Sir William Francis Elliot, and the heir of entail of the estate of Wells, of all debts and obligations which burden or affect the said estate; and to this effect decerned in the declarator at the petitioner's instance, assoilzied the petitioner from the whole conclusions of the action at the instance of the Earl of Minto, and decerned.” It was afterwards explained, that this decree against the Earl could not, under the libel at the instance of Sir William Francis Elliot, extend beyond the funds vested in the three per cent Cons. Ann.; and the decree was restricted accordingly; * 4th February 1823.

Footnote

* See 2. Shaw and Diinlop, No. 166. The opinions of the Judges will be found in the Faculty Report, from which it would seem that the correspondence did not enter

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The Earl of Minto appealed.Appellant. —By Mr Elliot's will the appellant is entitled to the whole effects in England of which the testator was possessed at the time of his death, and inter alia the L. 16,000 in the three per cents, with the single burden of paying the legacies bequeathed. There was no appropriation of this sum during Mr Elliot's life to the payment of Mr Balfour, or any particular creditor; and the rule of law therefore applies, that heritable debts burden the heritage. No doubt a testator may regulate the question of relief between heir and executor; but, in the present instance, there is in the deeds which he executed nothing which can be held to relieve the heir from the liability to which he is subjected by law. Indeed these deeds afford the very opposite inference; nor is there any thing in the situation of parties or the character the appellant holds under the will, to lead to a different conclusion. If, besides these considerations, you look to the conduct of Mr Elliot himself, the best of all authorities in a question like the present, you find that he did not contemplate that the bequest to the appellant should be subject to the claim made by the respondent. On the contrary, his whole conduct is only reconcileable with the opposite supposition. This is not to be shaken by a reference to vague probabilities or surmises what the testator intended to do. For the question is not, what might have been, or really was the view of Mr Elliot in selling Ormiston, and having L.16,000 remitted to London, but what he actually and legally did as altering or confining the rule at law. But here he converted part of his heritage into moveable funds, knowing that they were conveyed to the appellant; and he died without applying these funds to payment of an heritable debt, or imposing that burden on the appellant. The respondent always assumes, that, had Mr Elliot lived, Mr Balfour would have been paid by a transference of this very sum. That, however, is not a necessary inference; and, even if it were, quomodo constat that the instant after Mr Elliot would not have burdened to that very amount the entailed estate remaining in favour of the appellant.Respondent. —1. It was clearly the intention of Mr Elliot, as evinced by his whole conduct with relation to the sum of money in question, that it should be applied in payment of his debts;

Footnote

very deeply into the decision of the question. See Earl of Minto, 14th February 1823; No. 40. Fac. Coll.

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The House of Lords ordered and adjudged, “that the appeal be dismissed, and the interlocutors complained of affirmed.”Lord Gifford .—My Lords, There is the case of Lord Minto v. Sir William Elliot ; and I cannot conceal from your Lordships, that this is a case of very considerable difficulty,—that it appeared at the Bar that the Court below, being equally divided in opinion, called in the assistance of Lord Pitmilly,—and that then they held that Sir William Elliot was entitled to the claim he set up.My Lords,—The circumstances of the case are these:—The late Right Honourable William Elliot was born and domiciled in Scotland, and was proprietor of considerable estates in the county of Roxburgh, consisting of the baronies of Hadden and Ormiston, and various other lands. Several years ago Mr Elliot executed an entail, by which he granted procuratory for resigning his whole lands and heritable estates in Scotland, for new infeftment to himself, and the heirs of his body; whom failing, to the heir whomsoever of the heir-male of his body who might be last infeft; whom failing, to the heirs which were of his own body; whom failing, to Francis Augustus Lord Heathfield, and the heirs-male of his body; whom failing, to Sir William Elliot of Stobs, Bart and other persons. The deed contained the usual clauses, and he expressly provided, that himself and his heirs-at-law should free and relieve the said lands and estate, and the heirs of taillie who should succeed thereto, of all debts to which he, the party executing the deed, should be liable at the time of his death;—then he reserved to

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My Lords,—After executing this deed of entail in the year 1806, in the year 1809 he executed a supplementary deed of alteration; and by that deed of alteration he provided, that instead of the annuity of L. 400 to the heir of entail, it should be reduced to L.100 a-year, and he gave the trustees power to pay that sum instead of the L.400. ‘Secondly,’ (his Lordship then read the clause). Then he appoints his trustees to restrict the annuity of the heir to L. 100; and near the end of the deed there is the following clause,—“And whereas I am possessed of certain funds,” (his Lordship then quoted the clause). Then he concludes by a ratification of the trust-deed. In pursuance of this disposition, he, on the 4th of July 1816, executed a will, and in that he devises a residuary bequest to Lord Minto:my Scotch estate, and of my property in that part of Great Britain called Scotland.”
“All my books, and whatsoever other effects and property I may die possessed of in England, I give and bequeath unto the aforesaid Gilbert Earl of Minto, on condition that he pays Ambrose Glover, Esq. of Ryegate, in the county of Surrey, gentleman, attorney-at-law, the sum of L. 100; and unto Mrs Ridgeway, the wife of Mr William Ridgeway, tailor at Ryegate, servant to my late mother, the sum of L. 100; and unto my servant, Thomas Young, if he should be in my service at the time of my death, the sum of L. 50: and I do hereby appoint the said Gilbert Earl of Minto, and Ambrose Glover, executors of this my last will and testament; and I also hereby confirm the entail and trust-deed by me already made of

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My Lords,—Your Lordships perceive that the effect of this trust-disposition was to entail all the estate of Hadden, and to set apart his other property for the payment of the debts which might be owing at the time of his death, reserving to himself the right of disposing of his English property by will, unaffected by this deed. I should state to your Lordships, that one of the three debts he owed was an heritable bond for L. 16,000 sterling, which had been given over the lands of Ormiston and Hadden in favour of the late Arthur Balfour, Esq.—the right to which bond was, in the year 1818, vested in John Crawford Balfour, Esq. of Portland-place; another sum of L.5000 being due to Sir Robert Preston. I should also state to your Lordships, that the sum for which the heritable bond was given was, by the form of the bond, payable in London. Mr Elliot resolved to sell the lands of Ormiston; and your Lordships will see, by the correspondence that follows, that one object of his disposal of the estate of Ormiston was to get rid of this debt, which was a charge upon the entailed estate. A negociation took place with a gentleman of the name of Mein, who offered L.27,000 for the estate; but in the month of June 1818 he writes to Mr Ker, “Upon due consideration of all the circumstances of the case, and of Messrs Brodie and Imlach's opinion, I will take L. 28,000 for Ormiston, provided Mr Mein defrays half the expense of the conveyance, and consents to pay the whole, or L. 16,000 of the purchase-money, in London.”My Lords,—The matter was ultimately concluded that L.16,000 should be paid in London; and I would just read to your Lordships the correspondence, for these letters are very important in the consideration of this case. (His Lordship then read the whole correspondence already quoted in the report). Your Lordships perceive by those letters his object was to have the L.16,000 in London to pay Mr Balfour; and in the mean time he thought it right to make such interest as he could of the money, until the time arrived that he could pay Mr Balfour, he being to have six months’ notice before he could be called upon to receive the money. Upon the 6th of July Mr Mein's agent wrote to Mr Brodie, that his employer would that day give orders to place the L.16,000 in the hands of Messrs Drummonds in London. Of the same date Mr Brodie accepted the offer in name of Mr Elliot, and (also of the same date) wrote to that gentleman as follows:—(his Lordship then read the letter). My Lords, on the 12th of July Mr Ker instructed Mr Brodie to give notice of payment of the debt of L.5000, and on the 14th Mr Mein wrote that he had ordered the money to be paid in to Messrs Drummonds. On the 11th of July the agent of the British Linen Company at Jedburgh had written to his principal in Edinburgh, stating, “At request of William Mein, Esq. who holds a deposit-account here, I have to solicit you would have the goodness to direct Messrs Smith and Company to

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Now, my Lords, under these circumstances, the question is, Which part of the estate is liable to pay this L.16,000? By the will which I have stated, there is a bequest to Lord Minto, of “all my books, and whatsoever other effects and property I may be possessed of in England;” therefore he says, that the L.16,000 passed by the will. And, on the other hand, Sir William Elliot says, under all the circumstances of the case it was clear, that Mr Elliot intended to apply that L.16,000 to the debt due upon the estate to Mr Balfour, and that the correspondence I have stated shews the intention of Mr Elliot, that this L.16,000 should be appropriated to the payment of Mr Balfour.That under the English will the L.16,000 nominally passed, there seems to be no doubt; for although the word ‘effects’ is coupled with the word ‘books,’ and does not seem to have been used with reference to any such large property as this, I apprehend, strictly speaking, the property clearly passed under the will. The only question is, Whether, under all the circumstances of the case, there was such a separation of the L.16,000 by this correspondence, (I will not say actual appropriation; but not only an intention to appropriate, but such a separation), as shewed the purchaser that this L.16,000 was to be applied to Mr Balfour? and supposing Mr Elliot had lived, and had misappropriated that sum after it had been paid by Mr Mein, under the impression that Ormiston was to be free from that debt, whether he would not have had an equity against Mr Elliot to have that sum repaid?My Lords,—As I have stated before, the Court below were very much divided upon the question; and I am free to confess to your Lordships, that the case appears to me to be one of very considerable difficulty. Lord Minto is contending for more than I think the intention shews he was entitled to; because no man who looks at this correspondence can doubt, that it was the intention of Mr Elliot, upon

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Such, my Lords, after a very anxious consideration of this perplexing case, is the result of my opinion; and therefore, upon the whole, I should humbly propose to your Lordships to affirm the decision of the Court below, which appears to be not only consistent with the party's intention, but consistent with the rules of law, (as applied to this case), which entitles Sir William Elliot to call upon Lord Minto to apply that part of the fund existing in England, which appears to be carried by the will, but with this equity attaching upon it, in consequence of all the correspondence that had taken place between him and Mr Mein, in payment of that debt. What took place after Mr Elliot's death, cannot be taken into consideration. The debt is still existing; and the L.16,000 not having been paid at the time of his death, what took place afterwards cannot affect the rights of the parties. Under all the circumstances, I think the decision of the Court of Session is right.Appellant's Authorities. —Cheisly, Dec. 21. 1704, (5531.); Ker, July 7. 1714, (5533). Respondent's Authorities. —Campbells, Jan. 4. 1747, (5231.); Farquharsons, Feb. 10. 1756, (6569.); Countess of Cromarty, Jan. 26. 1764, (6601.); Waddel, 1814, (House of Lords, March 9. 1819), 1. Vesey, 273.Solicitors: Spottiswoode and Robertson— J. Richardson,—Solicitors.