Mary and Elizabeth Turnbulls - Abercromby v. John Tawse, W. S. surviving Trustee of Mrs Elizabeth Anne Hay or Turnbull [1825] UKHL 1_WS_80

UKHL
Mary and Elizabeth Turnbulls - Abercromby v. John Tawse, W. S. surviving Trustee of Mrs Elizabeth Anne Hay or Turnbull
[1825] UKHL 1_WS_80
A mother who was vested in the fee of certain subjects, having conveyed them to trustees for the purpose, inter alia, of paying a specific sum of debt, an annuity to herself, and conveying the free residue to her children nominatim, on which infeftment followed; and having thereafter executed a supplementary trust-deed, authorizing the trustees to dispose of the subjects for a larger debt than that specified in the first deed;—Held, (reversing the judgment of the Court of Session, and affirming that of the Lord Ordinary), That she was not entitled to execute the second deed, and that her children were entitled to have it reduced.The late Colin Campbell bequeathed a legacy of L.500 to his niece, Mrs Hay, wife of James Hay, exclusive of his jus mariti, for behoof of herself and children. With this money Mrs Hay purchased certain tenements in Edinburgh, the titles of which she took to herself in liferent and her children in fee. She had an only daughter, Elizabeth Anne, who married John Turnbull, merchant in Edinburgh; and on occasion of their marriage, Mrs Hay, on the 3d of August 1773, granted a disposition of the above subjects “to and in favour of myself in liferent, during all the days of my lifetime, for my liferent use allenarly, exclusive of the said James Hay, my husband, his jus mariti, and unaffectable by his debts and deeds, and to Elizabeth Anne Hay, my daughter, and her heirs and assignees whatsoever, in fee, heritably and irredeemably, all and whole,” &c. On the same day a contract of marriage was executed between Mrs Turnbull and her husband, by which, after certain provisions had been made in her favour, Mrs Turnbull disponed the subjects “to and in favour of herself and the said John Turnbull, her future husband, in liferent, for the liferent use of the longest liver of them two, and to the child or children of the marriage in fee; whom failing, to the heirs and assignees of the said Elizabeth Anne Hay, all and whole, &c.; but providing and declaring always, that the rents, maills, and duties thereof, shall neither be subject to the said John Turnbull's jus mariti, nor diligence, nor affectable

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Of this marriage there was a son, Alexander, and two daughters, (the appellants), Mary and Elizabeth. In 1779, Mrs Turnbull sold the subjects, and with the price purchased other property in Portobello. The disposition which she obtained to this property, dated 28th May 1779, proceeded on the narrative, that “Elizabeth Anne Hay, alias Turnbull, spouse of John Turnbull, merchant in Edinburgh, for herself, and in name and behalf of the children procreated betwixt her said husband and her, did, of the date of these presents, out of their own proper funds, being part of the price of certain subjects in Canal-street, belonging to her, exclusive of her husband's jus mariti, and unaffectable by her husband's debts and deeds, make payment to me,” &c.; and the dispositive clause was to and “in favour of Elizabeth Anne Hay, alias Turnbull, and the said John Turnbull, in liferent; for the liferent use of the longest liver of them two, and to the said Alexander, Mary, and Elizabeth Jane Turnbull, and their heirs, executors, and successors, in fee; whom failing, to the heirs and assignees of the said Elizabeth Anne Hay, alias Turnbull, heritably and irredeemably, declaring that the same should remain as a peculium or fund for answering the said Elizabeth Anne Hay's annuity, and for behoof of the children of the said marriage, agreeable to the legacy and appointment of the before-mentioned sum of L.500 bequeathed to the said Margaret Campbell, alias Hay, and her children, by Colin Campbell, Esq. deceased, with which legacy the heritable subjects in Canal-street had been bought, all as specified in said contract of marriage;” but it was farther provided and declared, “That although the fee of the said lands and others is provided to the said Alexander, Mary, and Elizabeth Turnbulls, yet, notwithstanding thereof, it shall be lawful to, and in the power of, the said Elizabeth Anne Hay, alias Turnbull, exclusive of the jus mariti or administration of her said husband, and unaffectable by his debts and deeds, and without the consent of her said children, to burden, feu, and dispose of

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About the year 1804 Mr and Mrs Turnbull got involved in pecuniary difficulties, chiefly in consequence of the conduct of their son Alexander; and with the view of extricating themselves, Mrs Turnbull, with consent of her husband, on the 18th of April 1804, executed a trust-deed in favour of the respondent, John Tawse, writer to the signet, and certain other gentlemen, who were now dead. That deed proceeded on the narrative and consideration, “that the expense incurred in the education of our son Alexander Turnbull, and in relieving him from embarrassments, in which he had imprudently involved himself subsequent to his apprenticeship, and his having commenced business on his own account, have, with other unforeseen misfortunes, rendered the contracting of debt by us unavoidable; and also considering, that from the infirm and valetudinary state of me, the said John Turnbull, I am unable to pay that attention to our affairs which their situation requires; from these considerations, and in order that the debts due by us may be speedily discharged at the least possible expense, and that the residue of the property belonging to me, the said Mrs Elizabeth Anne Hay, may be effectually secured to me and my said husband, under the declaration after-mentioned, and the longest liver of us in liferent, and to our daughters after-named in fee, our said son having already received much more than his proportion of the property and effects belonging to us, we have resolved, after full deliberation and mature consideration, to grant the trust-right and disposition underwritten, in favour of the persons after-named, in whom we have entire confidence, and who, at our earnest request and solicitation, have agreed to accept.” She therefore disponed the property to the trustees, with the most ample powers of sale, feuing, &c. and bound herself, her heirs and successors, to warrant and ratify their acts; “but declaring always, as it is hereby provided and declared, that these presents are granted in trust, for the uses and purposes, and with and under the conditions, provisions, and declarations after expressed.” And then it proceeded to set forth these purposes:—generality, the several sums of money advanced and paid to me, or for my behoof, by the said John Tawse, for the purpose of relieving the said subjects of the arrears of feu-duty, and paying certain other debts, and satisfying the claims of several importunate creditors, amounting in whole, at the date hereof, conform to an account to be subscribed by us as relative hereto, to the sum of L.258. 16s. sterling, and of the lawful interest thereof from the date hereof until the same shall be satisfied and paid.”
“That is to say, in the first place, for the payment of the expense of executing this trust, and of all debts and sums of money, whether heritably secured or otherwise, which shall have been contracted, resting and owing by me, the said Elizabeth Anne Hay, preceding the date hereof; and particularly, without prejudice of the foresaid

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“In the second place, for payment to us, the said Elizabeth Anne Hay and John Turnbull, and longest liver of us; with and under the conditions and declarations after expressed, of such an annual sum, in half-yearly payments, as the rents and feu-duties of the property hereby conveyed shall enable the before-named trustees to afford, after payment of the debts due by us preceding the date hereof, or the interest of the said debts, until the principal sums can be satisfied and paid from the proceeds of the sales of the property herein before conveyed.” “Providing always, that in case I, the said Mrs Elizabeth Anne Hay, should consider it for my interest to possess the Tower at Portobello, part of the subjects before-disponed, or to let the same and draw the rents thereof, I shall, notwithstanding these presents, have full liberty so to do, providing there shall be a sufficient fund arising from the other subjects hereby conveyed, for payment of my said debts, and answering the other purposes of this trust, but not otherwise.” “And it is hereby also provided and declared, that whatever annual sum can be afforded to be paid to us aforesaid, from the surplus of the said rents and feu-duties, shall neither be subject to the jus mariti of me, the said John Turnbull, or be affectable by my debts or deeds, or the diligence of my creditors; and the rents of the said Tower, and the said annual sum, whatever it may be, shall be paid to me, the said Elizabeth Anne Hay, during my life, upon my own receipt, without the consent of my said husband.” There was then a provision for appropriating the free residue, after the death of Mr and Mrs Turnbull, for the support of their daughters, the appellants. The third purpose of the trust was thus expressed:—of the said Alexander Turnbull, our son, and Mary and Elizabeth Jane Turnbull, our daughters, in such shares and proportions as shall be directed by me, the said Mrs Elizabeth Anne Hay, by any writing under my hand; and in the event of my not executing any deed or writing to that effect, then to the said Mary and Elizabeth Jane Turnbull, our two daughters, equally and proportionally between them, share and share alike, and to the survivor of them, and the lawful issue of such of them as may die previous to the period of division; that is to say, the lawful issue of any of my said daughters shall draw the share which their mother would have been entitled to receive, had she survived the period when the property hereby conveyed becomes divisible betwixt them; whom all failing, to the said Alexander Turnbull, their brother, and the heirs of his body; whom all failing, to my own nearest heirs or assignees whomsoever. And although the said Alexander Turnbull has already received more than his proportion of the property belonging to me the said Mrs Elizabeth Anne Hay, and is only here called to the succession of the residue, failing my said daughters and their issue, yet nevertheless I hereby authorize and empower the before-named trustees, in case no deed shall be executed by me making any farther provision to my said son, to pay to him, out of the residue and reversion of the said subjects, the sum of L.20 sterling, at the first term of Whitsunday or Martinmas that shall happen after the death of the longest liver of us, the said Elizabeth Anne Hay and John Turnbull, and that in full of all that he can ask or claim, by or through the decease of either of us, in any manner of way: And upon the residue, after deduction of the whole expense of executing this trust, being applied in manner before-mentioned, then the said trustees shall be exonered of this trust, and my said children and foresaids shall be obliged to grant all deeds necessary for that purpose.”
“In the third place, after the death of the longest liver of us, the said Mrs Elizabeth Anne Hay and John Turnbull, our said trustees, survivors or survivor of them, are hereby authorized and empowered, with all convenient dispatch, to dispone and convey the free residue of the property herein before disponed, or to pay and apply the proceeds thereof, to the use and behoof

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There was no provision for any reconveyance of the subjects to Mrs Turnbull, either in liferent or fee, or that the trustees should denude during their lives, or be exonered by them.On this deed infeftment was taken, and the trustees entered into possession.Thereafter the trustees, having paid debts or advanced sums to a much larger amount than were covered by the above deed, obtained on the 26th of May 1806 a new deed, called a supplementary trust-deed. This deed proceeded on the narrative of the execution of the former one, and “that the chief purpose of

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On hearing parties, Lord Cringletie, Ordinary, pronounced this interlocutor on the 19th of January 1820:—the marriage in fee; whom failing, the heirs and assignees of the said Elizabeth Anne Hay, i. e. Mrs Turnbull herself; and the jus mariti of the said John Turnbull, in so far as related to these subjects, was anxiously excluded. Finds, that after the said couple had a son, named Alexander, and two daughters, Mary and Elizabeth Jane, the said Mrs Turnbull sold these houses, and with the price thereof purchased property in the village of Portobello; and as this was understood to be a surrogatum for the other which had been sold, the disposition bore that in its narrative, and conveyed the subject to Mrs Turnbull and her husband in liferent, for the liferent use of the longest liver of them two, and to the said Alexander, Mary, and Elizabeth Jane Turnbulls, and their heirs, successors, and assignees, in fee; and this disposition also excluded the jus mariti of the said John Turnbull in the receipt and administration of the rents, and contained a power to the said Mrs Turnbull, exclusive of the jus mariti, and without consent of her said children, to burden, feu, and dispose of the said lands and others. Finds, that she and her husband, having got into pecuniary embarrassment, took the resolution to extricate themselves therefrom, by paying off their debts, and to secure the free residue to their children; and accordingly, on the 18th of April 1804, they executed a trust-deed in favour of the defenders, the narrative of which details the difficulties in which they had been involved, and mentions, that from these considerations, and “in order that the debts due by us may be speedily discharged at the least possible expense, and the residue of the property belonging to me the said Elizabeth Anne Hay,( i. e. Turnbull), may be effectually secured to me and my said husband, under the declaration after-mentioned, and the longest liver of us, in liferent, and to our daughters after-named in fee, our said son having already received much more than his proportion of the property and effects belonging to us, we have resolved, after full deliberation and mature consideration, to grant the trust-right and disposition underwritten.”
“The Lord Ordinary having heard parties' procurators on the grounds of reduction and defences, finds, that by antenuptial contract of marriage, entered into between the pursuer Mrs Turnbull, and her late husband John Turnbull, merchant in Edinburgh, she alienated and disponed certain houses belonging to her in Bristo and Canal-streets of Edinburgh, to and in favour of herself and the said John Turnbull, her future husband, for the liferent use of the longest liver of them two, and to the child or children of

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Finds, that accordingly “Mrs Turnbull conveyed her whole property to the defenders, with full power to feu, sell, and dispose thereof, either by public or private sale, but under trust always, 1st, For payment of the expense of executing the trust, and of all debts and sums of money, whether heritably secured or otherwise, which shall have been contracted by me the said Elizabeth Anne Hay preceding the date hereof; and particularly a debt due to the defender John Tawse of L.258. 16s.: 2dly, The trustees were

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The trustees then reclaimed to the Court.Lord Craigie observed,—I differ in opinion from the Lord Ordinary. By the original deed granted by the grandmother the fee was vested in Mrs Turnbull, and by the marriage-contract the subjects were taken to her in liferent, and to the children nascituris in fee. This clearly constituted Mrs Turnbull the fiar. Then the property in Portobello was purchased with the price of the subjects of which she held the fee. By the disposition, no doubt, to this property, there is ex figuro verborum a liferent only in favour of Mrs Turnbull, and a fee in the children nominatim; but then this is qualified with a declaration, that she shall have power to feu and dispone the property. Therefore it is plain that the fee was truly and substantially in Mrs Turnbull. Such was the state of matters when she executed the trust-deed of 1804. Now, unless the fee was expressly taken out of her by that deed, and transferred to the children, she must remain fiar. It is true that the intention seems to have been, to constitute her a liferenter and the children the fiars. But this, it will be recollected, is merely a trust-deed, intended for the benefit of the granter, and not an absolute conveyance; and it will be observed, that there is a clause which necessarily imports that she was fiar. No doubt after her death the children were to have right to the fee; but that merely gave them a spes successionis. As the fee therefore remained in Mrs Turnbull, she had power to grant the supplementary deed, and consequently the interlocutor must be altered.Lord Glenlee .—The trust-deed of 1804 vested the fee in the trustees, and not in the children. Under that deed they had a mere spes successionis. The second deed was a most expedient

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Lord Bannatyne thought the interlocutor right. By the deed of 1804 a fee was constituted in favour of the children, and therefore their mother could not grant the subsequent deed.Lords Justice-Clerk and Robertson concurred with Lords Craigie and Glenlee; and the Court therefore, on the 7th of February 1822, altered, sustained the defences, and found the trustees entitled to expenses, payable out of the trust-funds. Against this judgment the appellants having reclaimed, and the Judges (with the exception of Lord Bannatyne, who now thought the Lord Ordinary wrong) having remained of their former opinions, the Court, on advising the petition with answers, adhered on the 12th of November 1822. *The appellants, Mary and Elizabeth Turnbulls, appealed.Appellants .—The terms of the deed executed by the grandmother and mother of the appellants, prove that the different properties acquired by them were intended as a provision for the children of the marriage between Mr and Mrs Turnbull. The jus mariti and debts of the former are specially excluded from affecting the estate, and the fee is destined to the children, first, nascituris, and, secondly, nominatim. Thus, Mrs Turnbull, in the disposition of the trust-subjects, is stated, “for herself, and in name and behalf of the children procreated betwixt her said husband and her,” to have made payment of the price. Again, the disposition is to Mrs Turnbull and her husband in liferent, “and to Alexander, Mary, and Elizabeth Jane Turnbull, in fee;” and a declaration is particularly introduced, that the subjects are to remain as a ‘fund for behoof of the children.’ These anxious stipulations sufficiently evince the nature and intention of the parties. There can be no doubt that the interest of the children of the marriage was directly contemplated by the granter of the deeds, in pursuance of the provisions in the contract of marriage, and the settlement by Mrs Hay. The appellants

Footnote

* See 2. Shaw and Dunlop, No. 1.

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But, on the other hand, a proprietor who dispones to himself in liferent, and his children nominatim in fee, creates in them an absolute right of which he cannot deprive them. This he may do either directly by a deed in their favour, or through the intervention of trustees. Where a trust-disposition of land is executed in favour of certain trustees, and is delivered and completed by infeftment and registration, and if that trust-deed be not revocable or alterable, parties favoured by the purposes of the trust have a jus quæsitum, which cannot be taken away from them at the pleasure of the granter of the trust afterwards expressed, but which it is the right and the duty of the trustees to give full effect to.The appellants admit, that trusts may be made revocable, or alterable, either at the pleasure of the granter or his heirs, or at the pleasure of the granter only. In the first of these cases, parties favoured by the purposes of the trust have no right on which they can rely, until something has been done in their favour by the trustee, and under the trust, which has been allowed by the granter and his heirs to operate. In the latter, they can have no such reliance till the power of revocation has expired by the death of the granter.

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But where trusts are granted without any power of revocation or alteration, and these trusts completed by delivery, infeftment, and registration, there emerges a duty in the trustees to execute the purposes of the trust, and a right in those persons in whose favour these purposes are expressed, which is wholly independent of the pleasure of the original granter.Respondent .—The doctrine laid down by the appellants regarding the nature and legal effect of trusts, is stated in terms by far too broad and unqualified; and if the notions expressed by them were correct, very serious doubts might be entertained of the soundness of many decisions pronounced by the Court. A trust may be so constituted as to produce all the effects which the appellants ascribe to trusts generally, wherever infeftment and registration have followed; but the true doctrine regarding trusts in general is widely different from that laid down by the appellants. If the deed of trust declares totidem verbis, or by its particular structure indicates clearly, that the granter intends to put an end to his own right and powers, and to vest a jus quæsitum irrevocably in those who are favoured by the deed, undoubtedly a Court of law would be bound to give it that effect. But unless the granter's intention to this purpose be made perfectly clear, either by express declaration, or by the particular structure of the deed he has executed, the respondent denies that the trust, though followed by infeftment and registration, can have that effect, either according to sound principle, or the decisions of the Court. In all such cases it is held to be a question of fair construction, depending on the different clauses of the deed, and principally on the considerations which led to its execution, and the chief object which the truster thereby had in view, how far he is to be considered as divested of all right and power over his property, and to what extent, whether absolutely, or only sub modo, a jus quæsitum can be insisted on by those who are favoured in the deed.If this rule of fair interpretation, which is founded on the presumed views and intention of the granter, were not allowed to operate, a great degree of injustice would be the consequence. Men might be stript of their property, as an effect of their own spontaneous deeds, although they never had any such effect in contemplation; and the grantees under such deeds would acquire rights, without either compact or onerous consideration, which they might hold as absolute and indefeasible, although that probably would have been the very last thing the granter

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There is another principle or rule of law which enters deeply into the present question; namely, that which is uniformly applied in construing grants from parents to children, which are viewed in a quite different light from those granted to strangers. Where the disponee is a stranger, the law considers him to have purchased the right; the presumption being, that the owner would not convey away his property to a stranger without an onerous consideration. Care, therefore, must be taken in the deed of conveyance, that the expressions do not in any respect go beyond the intention, as effect would be given to it against the granter in terminis. But a deed granted by a parent to his child, although expressed in the same terms, will not, by any means, have the same effect; for although a fee should be conferred per expressum on the child, the deed may be so construed that he have no fee at all, and instead of a vested right de præsenti, have nothing more than a mere hope of succession.Such being the established rules applied in the interpretation of trust-deeds, and of deeds by parents in favour of their children, whether granted in the shape of trust-deeds or otherwise, it is to be considered what ought to be held the just import and effect of the deeds of trust now in question.It is to be remembered, then, in the first place, that Mrs Turnbull originally was the undoubted absolute proprietor of the subjects, both of those that were first purchased in Bristo-street and Canal-street, and those that were substituted in their place by purchase at Portobello. By the title-deeds of these respective subjects, she unquestionably had power to dispose of them as she thought fit; and previously to the constitution of the first trust, the appellants could not pretend to have any right in the subjects by which they could prevent her. Neither was she under any personal obligation to confer the property on them; nor is it alleged that she received any onerous consideration to induce her to do so. The disposition by her mother, Mrs Margaret Hay, to her, in 1773, as well as her own marriage-contract with Mr Turnbull in the same year, and the disposition of the Portobello subjects in 1779, do all of them import an absolute unqualified fee in Mrs Turnbull.Now, it is a consequence of this absolute right in Mrs Turnbull, that the first trust-deed in 1804, upon which alone the appellants found their claim, was and could be nothing else, in as far as regards them, than a voluntary gratuitous deed on the

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The House of Lords ordered and adjudged, “that the interlocutors of the 7th February and 12th November 1822, and the 25th January 1823, complained of, be reversed; and the Lords find, That the second deed of trust in favour of the respondent, now under reduction, and all that has followed thereon, in so far as the same are inconsistent with the trust-deed of the 18th April 1805, and injurious to the interest of the appellants, Mary Gordon Turnbull and Elizabeth Jane Turnbull, under the former trust-deed, are null and void; and reduce, decern, and declare accordingly: but in so far as the action proceeded at the instance of Mrs Turnbull, assoilzie the respondent therefrom, and decern.”Lord Gifford .—My Lords, In this case of Turnbull v. Tawse , Mary Gordon Turnbull, and Elizabeth Jane Turnbull, daughters of John Turnbull, and William Jameson, husband of Elizabeth Jane Turnbull, are the appellants; and John Tawse, surviving trustee appointed by Mrs Hay, the widow of John Turnbull, is the respondent. This is an action brought by Mary Gordon Turnbull and Elizabeth Jane Turnbull, and their mother Mrs Elizabeth Anne Hay, for the purpose of reducing a trust-deed which had been executed by Mrs Hay in the year 1806, on the ground that the deed was inconsistent with a former trust-deed of 1804 by the same persons.My Lords,—The circumstances out of which this action arose I will shortly state to your Lordships. It appears that in the year 1773 a settlement was made, upon the marriage of Mrs Elizabeth Anne Hay with Mr John Turnbull, of certain lands, of which Mrs Hay's mother was at the time possessed in liferent; and the disposition was made in favour of Mrs Elizabeth Anne Turnbull and John Turnbull, her husband, in liferent, for the liferent use of the longest liver of them, and to the child or children of the marriage, whom failing, to the heirs and assignees of Mrs Turnbull; but exclusive of the jus mariti of her intended husband, the limitation to the children being to the children in fee. As there could be no doubt that Mrs Turnbull was absolute fiar of the subjects by the deed of 1773, in the year 1779 she sold the same, and laid out the price in the purchase of other

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My Lords,—In this state matters remained till the year 1804. It appears that at that time considerable debts had been incurred by Mr and Mrs Turnbull, principally, as it seems, to relieve the son Alexander from embarrassments; but at that time a trust-deed was executed by Mrs Turnbull, to which trust-deed it will be necessary for me to call your Lordships' attention, because on the construction of that instrument the question your Lordships will have to decide mainly depends.My Lords,—That deed recites, that “considering that the expense incurred in the education of our son, Alexander Turnbull, and in relieving him from embarrassments in which he had imprudently involved himself subsequent to his apprenticeship, and his having commenced business on his own account, have, with other unforeseen misfortunes, rendered the contracting of debt by us unavoidable; and also considering, that from the infirm and valetudinary state of me, the said John Turnbull, I am unable to pay that attention to our own affairs which their situation requires; from these considerations, and in order that the debts due by us may be speedily discharged at the least possible expense, and that the residue of the property belonging to me, the said Mrs Elizabeth Anne Hay, may be effectually secured to me and my said husband under the declaration after-mentioned, and the longest liver of us in liferent, and to our daughters after narrated in fee, our said son having already received much more than his proportion of the property and effects belonging to us,—we have resolved, after full deliberation and mature consideration, to grant the trust right and

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Then it is also provided and declared, “that whatever annual sum can be afforded to be paid us as aforesaid from the surplus of the rents and feu-duties, shall neither be subject to the jus mariti of the said John Turnbull, or be affectable by any of my debts or deeds, or the diligence of my creditors; and the rents of the Tower, and the annual sum, whatever it may be, shall be paid to me, the said Elizabeth Anne Hay, during my life, upon my own receipt, without the consent of my husband.” Then it is provided, that although the liferent of the surplus rent and feu-duties is provided to Mr Turnbull after the death of his wife, he should be bound and obliged to aliment and maintain the daughters in a proper and suitable manner. Then, in the third place, “After the death of the longest liver of us, the said Elizabeth Anne Hay and John Turnbull, our trustees, and the survivors or survivor of them, are hereby authorized and empowered, with all convenient dispatch, to dispone and convey the free residue of the property herein before disponed, or to pay and apply the proceeds thereof to the use and behalf of Alexander Turnbull, our son,

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My Lords,—After the execution of that deed in the year 1804, a second trust-deed—a supplementary trust-deed as it is called—was executed by Mrs Turnbull; and the question in this case for your Lordships' consideration will be, whether, after the execution of the first trust-deed, it was competent to Mrs Turnbull to execute this supplementary trust-deed, or at least to make any provision in it inconsistent with the first?This second trust-deed recites the first trust-deed, and states also, that, by virtue of the precept of sasine therein contained, the trustees were infeft the 19th November 1804; “that the chief purpose of our granting the foresaid trust-disposition was for the payment of certain debts contracted by me, Mrs Elizabeth Anne Hay, and my husband, which debts arose principally from the extravagance of our son, Alexander Turnbull, and other causes unnecessary to be herein detailed; and as it is still the earnest desire of me, the said Mrs Elizabeth Anne Hay, that these debts, so far as approved of by me, should be paid by my said trustees, therefore, in order to remove every doubt which might be otherwise entertained with respect to the power of my said trustees, under the above-mentioned trust-deed, to discharge the debts due by me and my husband with safety to all parties, we have by these presents, with joint consent, and taking burden as aforesaid, but always in supplement of the foresaid trust-deed, and without prejudice thereto, given, granted, alienated, and disponed to and in favours” of the trustees, the subjects which were contained in these trust-deeds. Then she also makes over certain household

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My Lords,—An action was brought in the year 1816 by Mrs Turnbull and her two daughters, her son being dead, to reduce this second instrument, so far as it was inconsistent with the trust; and the cause coming on before my Lord Cringletie, the Lord Ordinary, his Lordship pronounced this judgment:—(Here his Lordship read the interlocutor). The effect, therefore, your Lordships perceive, of this interlocutor was, to reduce the second trust-deed, in so far as it was inconsistent with the provisions of the first, the Lord Ordinary being of opinion that under the first the residue was vested in the trustees for behoof of the children. (His Lordship then took notice of the successive representations which were presented, and of the answers thereto, and read the interlocutors of the Lord Ordinary refusing the same).My Lords,—Against this interlocutor the trustees reclaimed to the Inner-House; and on the 7th of February 1822 the first interlocutor was pronounced which has been appealed from, which is in these terms:— (Having read it, his Lordship proceeded), My Lords, this interlocutor was subsequently adhered to by another interlocutor of the 12th of November 1822, and by another interlocutor of the 28th of January 1823.My Lords,—Against these interlocutors this appeal is brought to your Lordships; and the question which has been discussed below, and discussed at your Lordships' Bar, is upon the effect of this first trust-deed. Now, my Lords, I may perhaps state to your Lordships,

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In answer to this argument the respondents say, “that the doctrine laid down by the appellants, regarding the nature and legal effects of trusts, was stated in terms by far too broad and unqualified; and that if the notions expressed by them were correct, very serious doubts might be entertained of the soundness of many decisions pronounced by the Court.” Then they state that they agree, “That a trust might be so constituted as to produce all the effects which the appellants ascribe to trusts generally, wherever infeftment and registration have followed, the respondent had no occasion to dispute. But he submitted, that the true doctrine regarding trusts in general was widely different from that laid down by the appellants. If the deed of trust declares totidem verbis, or by its particular structure indicates clearly, that the granter intends to put an end to his own right and power, and to vest a jus quæsitum irrevocably in those who are favoured by the deed, undoubtedly a Court of law would be bound to give it that effect. But unless the granter's intention to this purpose be made perfectly clear, either by express declaration, or by the particular structure of the deed he has executed, the respondent denied that the trust, though followed by infeftment and registration, could have that effect, either according to sound principle or the decisions of the Court. In all such cases it is held to be a question of fair construction, depending on the different clauses of the deed, and principally on the considerations which led to its execution, and the chief object which the truster had in view, how far he is to be considered as divested of all right and power over his property, and to what extent, whether absolutely or only sub modo, a jus quæsitum can be insisted on by those who are favoured in the deed.” And I do not find, on looking through the reporter's notes, which contain a tolerably accurate account of the grounds upon which the Judges have proceeded in the Court below; I do not find the law thus

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Several of the Judges seem to have been of opinion, that in the original trust-deed they collect an intention on the part of Mrs Turnbull to reserve to herself a right over these subjects; and one of the Judges particularly lays great stress upon the epithet, ‘free residue,’ which is used in that deed, as implying that all that was intended to be reserved for the daughters, (who were the survivors of the children), was the residue of this property, after discharging all the debts and encumbrances during the lifetime of Mrs Turnbull. My Lords, undoubtedly, if that could be collected from this first instrument, I should agree in the conclusion which the Judges have drawn; but looking at this first deed, it appears to me to have been most anxiously framed for this purpose, in the first place, certainly for the payment of the debts, which was a part of the considerations which they had anxiously in view; but after the discharge of those debts, it appears to me to have been the intention of Mr and Mrs Turnbull clearly to endeavour, if they could, and as far as they could, to preserve the residue of the property for themselves for their lives, and their children after their deaths; and that the free residue, which they declare to be for the benefit of the children, is that residue which would remain after discharging the purposes of the trust-deed.Now what were those purposes? They were the payment of the debts then due; and the language of the instrument in that respect cannot admit of any doubt in my opinion; because, in looking to one part of this trust-deed, it expressly refers to the debts which were due previous to the date of that trust-deed; and it was for the satisfaction of those debts the trustees had power to sell. After those debts were satisfied, the residue of the property is expressly required by the deed to be effectually secured to Mr and Mrs Turnbull in liferent, and the children nominatim. Now, if, as it then

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That being so, let us look at the subsequent instrument executed by her and her husband. It is an instrument, reciting that this is “in supplement of the aforesaid trust,” and stating also that it is to be without prejudice to that trust-deed; “therefore, in order to remove every doubt which might be otherwise entertained with respect to the power of my trustees, under the above-mentioned trust-deed, to discharge the said debts due by me and my husband with safety to all parties, we have by these presents, with joint consent, and taking burden as aforesaid, but always in supplement of the foresaid trust-deed, and without prejudice thereto, given, granted, alienated, and disponed, as we hereby give, grant, alienate, and dispone, to and in favour of” the trustees, for the payment of those other debts. The question, as I have already stated, comes back then to this, What was the effect of the first trust-deed? For, if that trust-deed absolutely divested her of the fee upon the trusts of that settlement, and if there is nothing to be collected from that instrument to shew that she intended to reserve to herself that disposition which she exercised under the second deed, then the first must be held a valid trust-disposition, giving the property to Mrs Turnbull for her life, and giving to the children a vested interest,—if I may use an English phrase,—a vested interest in the residue which remained after payment of the debts. I observe the Lord Justice-Clerk states, that in the first instance he had doubted upon the circumstances; but that he was quite clear that, at the time the first trust-deed was executed by Mrs Turnbull, she was absolute fiar of the subject, and might dispose of it in any way she thought proper; that her right to burden, sell, and dispose of it, was clear and undoubted; but the question was, whether, after she executed the first deed in 1804, she had the full right of disposition of that which she previously had enjoyed? and I have before stated, more than once, in that which I have had the honour to address to your Lordships, that the Lord Justice-Clerk, and the other Judges, were clearly of opinion, that if she had vested the fee nominatim in the children by immediate disposition, that would have been a good disposition by her; but the difficulty they had was, whether in the fair construction of this trust-deed, and the intention of the parties, to be collected from that instrument, she did not intend to reserve to herself the disposition over this property,—admitting that if that was not to be collected from that instrument, the fee would be well vested in the trustees, and that it was not competent to her afterwards to alter the dispostion of that trust-deed.My Lords,I have very anxiously considered this case when it was argued before your Lordships shortly before the holidays, and more

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Appellants' Authorities. —3. Ersk. 8. 38.; Gordon, Jan. 2. 1771, (15,579.); Coners against Nelson, 1781, (not rep.); Seton, March 6. 1793, (4219.) Respondent's Authorities. —Lockhart, Feb. 19. 1819, (F. C.); Campbell, Jan. 14. 1801, (No. 11. Adjudication); 3. Ersk. 8. 35.Solicitors: J. Richardson— Spottiswoode and Robertson,—Solicitors.