Anna Maria Graham or Templer, and Lady Montgomerie - Ada - Wilson v. The Reverend George Henry Templer, and Others - Sugde - Keay [1828] UKHL 3_WS_47

UKHL
Anna Maria Graham or Templer, and Lady Montgomerie - Ada - Wilson v. The Reverend George Henry Templer, and Others - Sugde - Keay
[1828] UKHL 3_WS_47
A party having conveyed his estate to trustees, for behoof of a contingent heir, whom failing, other substitutes, with a general assignation of rents for behoof of the contingent heir;—Held, (affirming the judgment of the Court of Session), That the heirs-at-law had no claim to the rents arising between the death of the party and the succession of the heir.

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Thomas Graham went to India in 1769, where, in 1783, he married Miss Paul, and settled L.10,000 upon himself and her, and the longest liver, in liferent, and the fee among the children of the marriage. In 1802 he acquired the estate of Kinross, in Scotland, under a transaction with the natural son of his brother George, the former proprietor. * He had previously bought the estate of Burleigh in the same county. Of his marriage he had two daughters, Anna Maria, who married the Rev. Henry George Templer, vicar of Shapwick, in Somersetshire, (on which occasion she received from her father L.5000), and Helen, who at a future period married Sir James Montgomerie of Stanhope. In 1808, Mr Graham, immediately before his departure from India, executed a trust-deed in these words:—
“Know all men by these presents, that I, Thomas Graham, a native of Kinross, in that part of the United Kingdom of Great Britain called Scotland, Esq. now acting President of the Board of Revenue at Calcutta, in Bengal, being about to embark on shipboard for Scotland, and now without the aid of persons learned in the laws of Scotland to assist me in making a disposition of my lands and other property in the manner I am now most desirous, and different from what I have heretofore done, according to the strict rules of the laws of Scotland, do hereby, for certain causes, and for the better disposing of all the property, landed, or real and heritable, whereof I am seized, possessed of, and entitled to in Scotland, England, India, or elsewhere, and also of all and every my personal, moveable, and chattel interests, estate, and effects whatsoever, in the manner herein after mentioned, and in consideration of the confidence which I repose in the persons herein after named, whom I appoint as trustees for the ends, uses, and purposes herein after-mentioned, give, grant, dispone, assign and make over, to and in favour of myself during my lifetime, and at my death to and in favour of my wife, Anne Graham, the Rev. George Henry Templer, vicar of Shapwick,”
(and certain other trustees), “heritably, according to the respective qualities of my said estates, real, or landed and personal, upon, and to and for the uses, trusts, intents and purposes following:—All messuages, lands,” &c. and his whole “personal estate and effects, and chattels, of what nature or kind soever,” belonging to him at the time of his death; “and without prejudice

Footnote

* See 1. Shaw's Appeal Cases, p. 365.

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“And I do hereby assign and dispone to myself, and to my said trustees, for the use and behoof of my heirs and substitutes before-mentioned, in the order aforesaid, all and sundry charters, procuratories of resignation, precepts and instruments of sasine, and other writs and securities of the lands and others before conveyed; and also the whole rents, feu-duties, maills, profits and casualties thereto belonging, and tacks, if any be subsisting at the time, for now and in all time coming.”
Mr Graham came to Great Britain, and resided partly in London, (where he had bought a house), and partly on his estates in Scotland, which he had increased by the purchase of Bow-house and Balgeddie. Thereafter his daughter Helen married Sir James Montgomerie, on which occasion he secured to her the L.5000 provided by the above deed. He died in London on 28th July 1819, leaving no other issue alive than his two daughters, Mrs Templer and Lady Montgomerie. The trustees accepted, and took possession of the estates. In 1820 the widow died. A question then arose as to the right to the rents which had become due since the death of Mr Graham, and to become due till the period when the trustees might be obliged to denude. Mrs Templer had only a daughter, and at this time Lady Montgomerie had no son. To try the question, they raised an action against the trustees, stating, “That by the failure of issue-male of the body of the said Thomas Graham, and as there are yet no male issue of the bodies of the pursuers, the said Anna

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The trustees stated in defence, that, by the law of Scotland,

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The Lord Ordinary decerned in terms of the conclusions of the libel, and communicated this opinion in a note:—
“The Lord Ordinary does not conceive the case to depend on English law: but he does not see sufficient ground in Scotch law for holding that the rents must be conveyed to the son of the testator's daughters first attaining majority, &c. along with the land. The Lord Ordinary is not able to consider past rents as accessories of lands. They are the price of the use of the land in past years, and no authority is referred to, establishing, that direction to convey land, at a time subsequent, implies that prior rents as accessories are to be conveyed with it. Now, in this case, the direction is such as necessarily to imply, that the conveyance of the land shall not be made till after an event shall have happened, i. e . after a time shall have passed. And there is no provision that the daughter's son, &c. shall have the intermediate rents, or that in the intermediate time it shall be managed for his profit, but merely that the land shall be held by the trustees for the purposes of the trust; and as one purpose, that, after a certain event, the land (not the rents) shall be conveyed to the daughter's son first attaining majority, &c. The Lord Ordinary has great doubts, whether, if the truster had been reminded that such rents might accumulate, and asked whether he desired that the daughter's son, &c. should have conveyed over to him, along with the land, such accumulated fund, he would not have said, “No. If money is to be gathered, I shall dispose of that otherwise.” At any rate, he has not directed this, nor does it appear to be necessarily implied in what he has directed.”
In the meanwhile Lady Montgomerie had two sons, and one of the substitutes having become bankrupt, and the trustees having reclaimed, the Court, on advising petition and answers, appointed intimation of the process to be made to such of the defenders of full age who had not yet appeared, and to the guardians of such of them as were under age, and also to the assignees under the commission of bankruptcy against George Edward Graham, Esq.; and thereafter, the order having been complied with, and a curator ad litem appointed for Lady

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† Lord Glenlee .—This case is certainly not in the same situation as when it was before us on the petition and answers. There is a great deal of new matter stated for the defenders. One thing which was not formerly stated to us, at least not so strongly, and which is of great importance, is not only the terms of the precept of sasine, but the terms of the assignation of the rents future and to come. When the question was before the Lord Ordinary, and formerly before us, it was understood to stand entirely in the manner stated in the cases from the English law; that in the trust-deed there were no directions as to the intervening rents; that the trustees claimed these as accessories of the estates themselves, for the use of those entitled to those estates, and that they would thus go to a person whose right only emerged at a distance of time; that there was no disposition of rents between the death of the testator and the coming of age of the son of the daughters, nor any due direction as to whom the trustees held the estate for during that time; and that the only purpose expressed by the testator was, that on that event the estate should go to the son when he comes of age; that the rents, no doubt, are accessories to the estate, but that it is absurd to say, that a person, whose right only emerges to-day, carries all the bygone rents; and that you are not to superinduce an intention to the will of the testator, which he might have had if he had thought of the matter. But it is quite a different question when you find the testator using words indicating this intention, that these rents should be held for a particular person. There is an express declaration that the rights to the estates are to be held “for the use and behoof of my heirs and substitutes before-mentioned in the order aforesaid; and also, the whole rents, feu-duties, maills, casualties, and profits thereto belonging, and tacks, if any be subsisting at the time, for now, and in all time coming.” I cannot hold that this is not a declaration that the rents of the estate are to be held by the trustees for behoof of the persons who, in the order mentioned in the deed, are to take the estate. As to the English law, I cannot pretend to say that I have any

Footnote

* 4. Shaw and Dunlop, No. 303.† These are the opinions laid before the House of Lords.

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Lord Pitmilly .—If we had been forced to decide this case as it stood formerly before us, I will acknowledge that I would have been disposed to concur in the interlocutor pronounced by the Lord Ordinary; but I am glad that it has been more fully investigated; and upon a more full consideration of the case, and of the new matter that has been brought before us, I have come to form the same opinion with that just delivered. The pursuers rest much on the idea, that these rents were not appropriated by the testator. It is not denied, and indeed could not be denied, that they were conveyed. They were so by the very nature of the conveyance; but there is, besides, an express assignation of them. But it is said that they were not appropriated; and therefore fall to the pursuers, either as nearest of kin, or as residuary legatees. The effect of their being conveyed would go a certain length in deciding the question. But we cannot lay out of view, that the rents were conveyed in a precise manner, which was not before us formerly, at least not so fully. This assignation is, I think, sufficient to decide the question. The rents are conveyed for the “use and behoof of my heirs and substitutes before-mentioned, in the order aforesaid.” Where that is the nature of the conveyance, the case is completely distinguished from the case of Souter, mentioned in the papers. There the whole subjects had been conveyed to the trustees to pay debts and funeral expenses, and the residue to an only son who had gone abroad; but in the event of the son not being heard of, there were certain legacies left. These were paid, and a surplus remained which the trustees claimed for themselves. That claim, however, was disregarded, and the next of kin was preferred to the surplus unappropriated. But this is a totally

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Lord Alloway .—None of your Lordships can regret the course we took when the case was last before us: At that time it struck the Court that the parties were nearly the same. The trustees, Sir James Montgomerie and Mr Templer, were pursuers so far as their wives were concerned, and as trustees they had little or no interest in the case; and therefore you properly ordered parties to be called who had an adverse interest. These parties have not appeared; but now the question is fairly debated, and I very much mistake if it will not be followed by an unanimous judgment, different from what would have been pronounced when it was last before us. At that time I considered it a case of such importance, that I stated the doubts which occurred to me for the use of the Bar. I am now satisfied on all the points, and that the case is now ready for decision.

The case for the pursuers is very well argued; but it is

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Lord Justice-Clerk .—As I agree entirely with the opinions that have been delivered, I do not intend to enter into the question at any length, but I must express my satisfaction that we took the course we did; for though this is an amicable suit, we adopted a course to enable us to have it argued fully. The case being now fairly before us, the question is, Whether we can authorize the trustees to pay over these rents to the pursuers. On the fullest consideration of the case, I am entirely of opinion that we cannot adhere to the interlocutor of the Lord Ordinary. It certainly is true, that this clause as to the assignation to the rents, on which your Lordships have founded so much, was not so strongly brought before us formerly. It is impossible, upon seeing that clause, to doubt that the question here raised by the pursuers does not apply to this case, that the testator must be held as having disposed of part of his estate, and not of the rest. If that had been the case, you would have looked to the cases quoted, and especially that of Souter. But is that the case here? We have an express declaration on the face of the deed, that the trustees are to hold these estates for behoof of the substitute heirs; and there is an assignation of the rents, not for behoof of the heirs of line, or the residuary legatees, but for the heirs mentioned in the deed. It is quite impossible to doubt that these trustees must do their duty. They must hold every advantage derived from the estate, as much as the estate itself, for the behoof of the first son of the daughters who shall attain the age of 21; and every thing for him as the favoured heir of the testator, the same as if it had been a son of the testator who succeeded. The same question, to be sure, could not have arisen with him, as the trustees must have denuded at once; but the same estate is conveyed to the substitute heirs as to the son. We cannot cut and carve on this deed, though these ladies stand as near to

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Lord Alloway .—We certainly ought to find that the expenses should be paid out of the trust-funds.The pursuers appealed.Appellants .—The lands were conveyed to the trustees, to be held for behoof of the son of the one or other of the appellants who should first attain majority, whom failing, the other substitutes. It is clear, therefore, that they do not hold the lands for any particular person. If the sons die before attaining majority, then the estates go to the substitutes; and, on the other hand, if one or other of them reach majority, then, but not till then, the estates will vest in his person. If they had vested in any party immediately, then, no doubt, the rents would as accessories have accrued to him. But that is not the case; and the only other way in which a right to them could be given, was by special conveyance. But there is no special conveyance to any part of the rents, and consequently they must belong to the appellants as the heirs-at-law of their father. It is true that there is a general clause conveying the rents to the trustees; but this is merely the usual one of style, and cannot be considered as indicative of the intention of the maker of the deed. Besides, it is plain, that if all the substitutes fail, the rents must accrue to the appellants as residuary legatees.Respondents . * —This case must be treated as a Scotch case, and be governed by the Scotch law. Mr Graham has most unequivocally expressed his will, that the rents and profits of his heritable property should be drawn and held by the trustees for the use and benefit of the heirs and substitutes, to whom ultimately these estates are destined. If Mr Graham had had a son, the

Footnote

* The Lord Chancellor did not require the respondents' Counsel to proceed, as he considered the assignation clause to settle the question against the appellants. The argument is taken from the respondents' Case.

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The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors therein complained of affirmed; and further, that the expenses of both parties in this cause be paid out of the trust-funds in dispute.”Appellants' Authorities .—Hyslop, Jan. 18. 1811, (F. C.); Arkwright, Dec. 3. 1819, (F. C.); Niven, March 6. 1823, (2. Shaw and Dunlop, No. 250.); Souter, Jan. 22. 1801, (No. 2. Ap. Imp. Will); Earl of Stair, May 24. 1826, and June 19. 1827, (ante, Vol. II. Nos. 31. and 54.) Respondents' Authority .—Gillespie, Dec. 7. 1802; (No. 2. Ap. Acc. Seq. Prin.)Solicitors: Moore— Spottiswoode and Robertson,—Solicitors.