Thomas Earl of Strathmore - Attorney-Genera - Robertson v. John Earl of Strathmore's Trustees - Lushingto - Rutherfurd [1831] UKHL 5_WS_170

UKHL
Thomas Earl of Strathmore - Attorney-Genera - Robertson v. John Earl of Strathmore's Trustees - Lushingto - Rutherfurd
[1831] UKHL 5_WS_170 · 1815-12-15
The House of Lords affirmed (ordering costs to be paid out of the trust estate) a judgment of the Court of Session, adhering to an interlocutor of the Lord Ordinary, finding that an heir excluded by a deed of entail and deed of nomination of heirs, executed according to the lawful powers of the granter, from an heritable succession in Scotland, had no legal title or interest to challenge a trust-deed as disposing of that succession in an irrational or otherwise illegal manner; the connexion between the trust and the other deeds not being such as to infer, that if the trust-deed were liable to relevant objections from the nature of its provisions, the entail and nomination must thereby be rendered invalid; that the objects and purposes of the trust-deed were clearly and intelligibly expressed; and there is no rule or principle established in the law of Scotland which renders it unlawful for a man, who is rei suæ arbiter rei suæ arbiter , to appropriate the rents and profits of his estate under a trust in the manner provided by the trust-deed under reduction; that the case of the rents of heritable estates in Scotland being expressly excepted from the provisions of the Act 39th and 40th Geo. III. c. 98, while they are clearly extended to personal funds in Scotland, any implication involved in that exception is against the supposition of any nullity being understood to be established by the common law of Scotland, in such a trust, for the accumulation of rents or other funds for a limited term; that the heir has no title or interest, under the Act of 39th and 40th Geo. III., to challenge the settlement of personal estate; that he cannot insist in the reduction of the last deed, on the head of death-bed, in respect that his title and interest arc excluded by the previous deeds; and the last deed does not revoke, but substantially confirms all the prior deeds.John , tenth Earl of Strathmore, the representative of a noble family, and to whom extensive possessions and honours had descended through a long line of ancestry, held his titles to his landed estates in fee simple. On the 15th December 1815 he executed a strict entail of the Barony of Glammis and his other Scotch estates in favor of himself and his issue, in a certain order, “whom failing, to any person or persons to be named by him in any nomination or other writing to be executed by him at any time of his life;” whom failing, to the party in right for the time to the earldom of Strathmore. This deed, proceeded on the narrative that it was for the better preservation of his estates, family, and name, and reserved full power and liberty to himself, at any time of his life, to revoke or alter in whole or in part, and to burden and affect with debt the lands

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The usual powers were given to the trustees, and they were named sole executors and intromitters with the moveable estate in Scotland; all which powers were stated to be conferred, to the end that the trustees might more effectually execute the purposes of the trust.On the 1st of July 1820 the Earl executed another deed, which, after referring to those above narrated, and stating the previous appointment of trustees, and the conveyance in their favour, proceeded thus:—in John Dean Paul of the Strand, Esq. (now Sir John), I do hereby nominate and appoint the said John Dean Paul to be one of my trustees and executors under my said trustdisposition, along with the trustees and executors therein named; and I give, grant, and dispone to him, along with the trustees named in the said trust-disposition, all and sundry the earldom, lordships, &c. and other heritages therein specified, upon the same trusts and for the same uses, &c. in the said trust-disposition contained, &c.; and I direct these presents to be held and taken as a part of my said trust-disposition, and in all other respects I confirm the same; and I consent to the registration hereof in the books of Council and Session in Scotland,”

“Having full trust and confidence

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&c. The Earl died on the 3d of the same month without lawful issue. * By this event his brother Thomas became Earl of Strathmore, whose eldest son became Lord Glammis.The trustees made up titles and took infeftment under the disposition, and Lord Glammis was thereafter served heir of tailzie under the deed of entail, and infeft in virtue of a charter of resignation. The estates yielded upwards of £12,000 per annum, and it was alleged that the accumulation at the end of the thirty years would amount to several millions. After being unsuccessful in an action of aliment against the trustees † , the Earl raised a summons of reduction, declarator, and adjudication against the trustees and Lord Glammis, the object of which was to set aside the trust disposition, entail, and deed of nomination executed on the 15th of December 1815, also the deed of the 1st of July 1820, and the service and titles in favour of Lord Glammis, and to have it declared that, as heir male or of line to his brother the late Earl, or to his father the preceding Earl, he had right to the estates, and, as next of kin to his brother, he had right to the moveables.The pleas in law relied on by the pursuer in support of his action, and by the trustees in defence, were substantially the

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* In 1811 the Earl had a natural son by Mary Milner, an English woman. The parties were domiciled in England, and the child born in England. A few hours before his death he married the mother in England; but a Committee of Privileges of the House of Lords decided that this marriage did not legitimate the son. See Appendix to 4 Wilson and Shaw.† See 2 Shaw and Dunlop, No. 80, and 1 Wilson and Shaw, No. 41.

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The Lord Ordinary found, “That the late Earl of Strathmore held the estates mentioned in the summons in absolute fee simple, and had full power to dispose of them in any manner not prohibited by law: Finds, that by deed of entail, of date 15th December 1815, the said Earl did, in due and lawful form, dispone the said estates to himself and the heirs male of his body; whom failing, to the heirs whatsoever of his body; whom failing, to any heirs to be named by him by any deed of nomination or other writing: Finds, that by deed of nomination of date the said 15th December 1815, executed in due and lawful form, the said Earl declared his will and intention to exclude entirely from the succession to his said estates the pursuer, then the Honourable Thomas Bowes, who was the heir presumptive by the standing investitures, and also John Lyon and Charles Lyon, esquires, and did by the said deed nominate and appoint the heir male of the body of the said Honourable Thomas Bowes, and a series of other heirs therein mentioned, to be the heirs of tailzie entitled to succeed to the said estates, failing the heirs male and female of the said Earls body, as provided in the said deed of entail: Finds, that by certain clauses in the said deeds of entail and nomination, the conveyance, and all the rights thereby created, are declared to be subject to the burden of a trust-deed executed of the same date, of 15th December 1815, and the whole conditions and provisions therein expressed, but that in other respects the said deeds of entail and nomination constitute a complete settlement by entail in favour of the heirs thereby appointed, to the entire exclusion of the said pursuer: Finds, that by trustdeed, bearing date the said 15th December 1815, executed in due and lawful form, the said Earl conveyed the whole of the said estates, and also his whole moveable funds and effects, in the event of his own death, to the defender James Dundas Esquire, and certain other persons, as trustees, for certain ends and purposes therein specified, and that the objects of this trust appear to be clear and distinct; viz. on the one hand to accumulate the rents of the existing estate and any residue of the personal funds, after paying the testator's debts and certain legacies provided during thirty years, to be employed in the purchase of lands to be added to the entailed estates, and, on

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On the case being brought before the First Division, their Lordships [16th Feb. 1830], without requiring cases, and after hearing merely counsel for the pursuer, adhered. †The pursuer appealed.Appellant —(As to title).—There is no sound objection to the appellant's title to sue. In the situation in which the entail stands, the appellant's being excluded by that entail from the succession is of no consequence; for the entail, the nomination of heirs, and the trust-deed must be considered in law as one

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* His Lordship added, in a Note:—

“The pursuer rests his case mainly on the case of M'Culloch of Barholm, Nov. 28, 1752, shortly reported by Lord Elchies, The Lord Ordinary has carefully considered that case in the papers, both those shown to him preserved with the reports of Lord Elchies and those in the collection of Lord Drummore, who was Ordinary in the cause, and he is completely satisfied that the decision pronounced can only be supported as a judgment on a very special case, on the ground alluded to in a short note of Lord Drummore, when the hearing was ordered, that the settlement could not be sustained as being unintelligible, inexplicable, et contra bonos mores. At all events he sees no ground for holding that that decision did or could establish any general principle in the law of Scotland, to prevent a proprietor in fee simple from vesting his estate in trust for accumulation during a limited course of years; and the Lord Ordinary is not aware of any legal ground on which this can be maintained.”
† 8 Shaw and Dunlop, No. 248.

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* John M'Culloch of Barholm against John, William, Henry, Jean , and Mary M'Cullochs .Nov. 28, 1752.Tailzie — Trust .—Settlements containing irrational and ridiculous provisions, and locking up or limiting the enjoyment of the rents and produce of the estates, real and personal, conveyed for many or what might prove many years, reduced at the instance of the heir.John M'Culloch, besides property which he acquired himself, inherited from his ancestors the lands of Barholm, producing about five hundred merks of yearly rent. He married Jean Gordon, who succeeded to the lands of Culvennan. They had one child, who married David M'Culloch, and had John, and Elizabeth. Barholm and his lady settled in strict entail, except a small portion lying contiguous to Barholm's own property, the estate of Culvennan, upon the daughter (married to William Gordon), and the heirs of her body, with a substitution in favour of her brother and the heirs of his body. The brother John, by consent of his father, had already been married to Elizabeth Cutlar, daughter of Cutlar of Argreennan, in whose marriage articles it is said to have been stipulated that the grandson was to be put in immediate possession of the lands of Barholm. Of this marriage there were born John, and two other sons and two daughters. In the year 1742 Barholm executed a deed of tailzie, comprising his own paternal patrimony and part of his wife's lands, about the annual value of £50 per annum, for new infeftment to himself and Jean Gordon his spouse, and longest liver of them two in liferent, and to John M'Culloch his grandson and the heirs male of his body in fee, with a long series of substitutions, under strict prohibitive, irritant, and resolutive clauses. This tailzie refers to a separate deed, executed by Barholm, with consent of his grandson, of the same date, relative to the personal estates in favours of certain trustees, containing also an assignment of the rents of the tailzied estate for the space of sixty years after the death of the longest liver of Barholm and his wife, for certain uses and purposes therein specified, which trust-right and assignment of the rents the heirs of entail are taken bound to ratify under an irritancy. By this tailzie liberty is granted to the several heirs of entail, male or female, to provide their respective spouses to a fifth pan of the free rent of the whole estate, by way of locality, in

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lieu of terce and courtesy; but it is nevertheless provided, that such life-rent localities should not impugn or weaken the assignment of the whole rents by the trust-deed, and that the same should only take effect after the years of which the rents were assigned, that is, at the end of sixty years after the death of the longest liver of Barholm and his wife; and, in the last place, it reserves a faculty and power to Barholm to revoke, rescind, or alter the same, in whole or in part, by any writing to be signed by him at any time in his life, etiam in articulo mortis, excepting the lands of Peble, which Barholm thereby renounces all power or faculty to burden, affect, or alter the destination of; and provides, that these lands of Peble shall fall and belong to the said John M'Culloch and his heirs, under the conditions, limitations, and irritancies above expressed, free and clear of any power in him to alter the same, and of any life-rent competent to him, or to Jean Gordon his spouse, of and concerning the same.By the separate deed of trust (and which referred to the above-recited disposition of tailzie) Barholm assigned and made over to the trustees therein named all debts and sums of money, heritable and moveable, then resting or that should be resting to him at his death, all rents and arrears of rents, goods, gear, &c. (in all about £6,000), and more particularly the rents of his whole estate for the space of sixty years from the first term preceding the death of the longest liver of him and his wife, and hail growing wood upon said estate during the aforesaid space, in trust, First, for payment of his whole debts, and funeral expenses of the longest liver of him and his wife: Secondly, for purchasing in certain parishes any lands lying near the lands already belonging to him that might be offered to sale, as an addition to the tailzied estate, under the like provisions, limitations, conditions, irritancies, &c.; in default of these being purchaseable the trustees were bound to apply the trust subject for the other uses and purposes in the deed specified: Thirdly, for purchasing other lands, not below 1,500 merks and not exceeding 1,8oo merks of yearly rent, in favours of the second son to be procreated of the body of John M'Culloch, his grandson, and the heirs whatsomever of the body of the said second son, with certain remainders over; and failing these, to return to his heirs of tailzie: Fourthly, for purchasing other lands of the like value and extent in favours of the third son to be procreated of the body of the said John M'Culloch, his grandson, with certain remainders over, and with the like return to the family: Fifthly, for making the like purchases of other lands, to the like extent, for behoof of each of the other younger children to be procreate of the body of the said John M'Culloch, his grandson, and the heirs of their respective bodies, with certain remainders over, and under the like clauses of return: Sixthly, he appoints the several lands thus to be purchased for behoof of his younger great grandchildren to be settled upon them severally by his trustees in the form of as many strict entails, with and under the same provisions, limitations, conditions, declarations, clauses irritant and resolutive, as are contained in his tailzie of the lands of Barholm, excepting only the obligation thereby put upon the heirs of entail to use the designation of Barholm; providing nevertheless, that the trustees should not denude of these purchases so to be made until such time as the younger great grandchildren severally should be married, and in the meantime that the rents of the lands so purchased should be added to the funds for making other purchases: Seventhly, if any funds remained after all these purchases, he directs the like purchases to be made for the behoof of his great great grandchildren, and these also to be settled in the form of as many strict entails. In 1746 Barholm and his spouse executed another trust-disposition, whereby, inter alia, they assigned and made over to the trustees therein named, for the uses and purposes therein-after expressed, the hail rents of his estate, comprehending the rents of Barholm and Peble, together with other subjects

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specified in this second trust-right, without any limited endurance in point of time, but for such a number of years, next and immediately after the death of the longest liver of him and his wife, as should be sufficient for answering the ends and purposes in the said deed expressed; the particulars of which are:—In the first place, he thereby confirms to John M'Culloch his grandson the rents of the lands of Barholm, but under this limitation, that he should have no right or interest in the growing woods; and he thereby further allows to his said grandson the rents of Bardristram and two parts of Clachrig and Camrid, in all about 300 merks more; and he declares that the rents of Bardristram, Clachrig, and Camrid shall not be arrestable or affectable by his creditors, but should continue under the management of the trustees, and that these trustees should apply the rents for purchasing victual and other necessaries for his grandson's family. Secondly, he appoints the rents of his whole other lands to be applied for portioning the other children of his grandson John M'Culloch, in such manner that each of these younger children, not exceeding the number five, should have five full years' rent of his estate, (deducting the life-rent provision made to the grandson, an annuity of 300 merks payable to David M'Culloch, and a provision made to Elizabeth Cutlar, in case it fell due,) and if six or more, that they should severally be entitled to four years' rent; that these rents should be applied in purchasing lands for behoof of these children respectively, to be settled upon them in the form of as many strict entails, under the same limitations, restrictions, and irritancies as in the bond of tailzie of the estate of Barholm, &c., but so as that these children should not be entitled to the benefit of these provisions, or of the lands purchased for them severally, till they should attain to the years of majority or marriage; and in the meantime, until these children should be married or attain the years of majority, and after majority if the children did not then claim their portions, that the annual rent, or the money, or the rents of the lands so to be purchased, should go in with the other subjects to increase their portions. Thirdly, it is provided that “if any of the said children die without sucsession of their own bodies, then the second male child next in age shall succeed; or, failing of males, the second female shall succeed. If Jean M'Culloch shall die without children, then Mary's second son or daughter shall succeed; and if Mary M'Culloch shall die without children, then William's second son or daughter shall succeed; and if William M'Culloch shall decease without succession of his own body, then his brother Henry, his second son or daughter, shall succeed. The succession shall go on in like manner to all their brethren and sisters that may be born; and if all of them shall die without issue of their own bodies, then John's second son (who is our heir), and the other brothers and sisters that second shall have, shall succeed every one of them to have a share as it is proportioned.” Fourthly, it is appointed, and the trustees are empowered “to settle the five children of the said John M'Culloch, our grandson, in that part of Balhassie we now possess, and in the house we dwell in, and office houses about it; and we hereby assign them our cattle of all kinds, and also our crop, with all our household plenishing; only our heir is to have right to what silver plate there is, and the two best horses, and two mounted beds, when the children are disposed of. The children now existing are, namely, Jean, Mary, William, and Henry M'CuIlochs. We allow them, besides the profits that may arise out of our present possession of Balhassie that we now occupy, the 400 merks payable to us out of the other parts of Balhassie, as they will need to be expended upon them; and they are to have all the presents and services belonging to us, excepting the flying presents and services on the south side of Mony-pool-burn, which are given to their father; and the said trustees are to provide a virtuous modest woman

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to take care of the children and their family, and they are also to provide a plain sober man to educate and teach the children. There is none to be entertained with them in their family, friend or other, but necessary servants; and if any shall remove the children, then the profits of present possession, with what else is allowed for their maintenance, shall be withdrawn, and applied as our rents are to be; only the trustees are not to set the piece of ground we now possess, but to keep it open for the children to return when they please. This settlement for their maintenance is not to take effect till after the death of the longest liver of us two. Any other children the said John M'Culloch may have in this present or any subsequent marriage are to be brought here at four years of age, and maintained and educate with the other children; and if any of the children shall be taken away, or all of them shall go away, then every thing that is allowed for their support shall be withholden from them, and applied as our other rents are appointed by us to be. When the girls come to be ten to eleven years of age there is a discreet prudent woman to be brought to the house, and kept half a year or a year with them, to teach them to make and dress their own clothes; and the boys are to be taught their Latin and Greek, writing and arithmetic, at home, and all of them to wear cloth made in the country.”In the same year Barholm and his spouse executed a second disposition or deed of tailzie, containing procuratory of resignation for new infeftment to be granted to himself and spouse, and longest liver of them two, in life-rent, and to John M'Culloch the defender, their eldest great grandson, and the heirs male of his body, in fee, with a long series of substitutions, and under the like provisions, conditions, &c. as in the tailzie 1742; and more particularly providing, that it should not be leisome to any of the heirs of tailzie to quarrel or impugn the assignation of the rents and duties of said lands and estate made by him to certain trustees, for the uses and purposes therein specified. Power to innovate or change the same, in whole or in part, by a writing under his hand, at any time in his life, etiam in articulo mortis, was reserved by Barholm. Thereafter Barholm, with consent of his spouse, and, as alleged, when upon death-bed, executed a third tailzie, in substance the same with the two former, John M'Culloch, the great grandson, being preferred to his father; and certain lands lately acquired were made part of this settlement; and of which it is an express condition, that the heirs of tailzie should not quarrel or impugn the trust assignation to the rents of these lands for the uses and purposes to which they were destined, the contravention of which, as of all the other conditions and limitations, is made an express irritancy of the right. By this tailzie also it is provided, that the haill heirs of tailzie above mentioned shall enjoy, bruik, and possess the said lands and estate, and every part and portion thereof, by virtue of this present tailzie, and infeftments, rights, and conveyances to follow hereupon, and by no other right or title whatsomever.After Barholm's death, John the grandson having come to the resolution of quarrelling Barholm's settlements, granted a trust-bond to David Maxwell, in order to lead an adjudication upon a special charge, to be the title of challenge. In the reduction which followed, John's children, and the other substitutes in the entail, were made parties defendants. The pursuer maintained, inter alia, (various points having been raised, and among others the objection that the last deed had been executed on death-bed,) that Barholm had, by his settlements, not only tied up the property of the estate by a strict entail in terms of the statute 1685, but had also sunk the rents of his estate for a great while after his death, and had locked them up, in order to raise irrational provisions for his younger great grandchildren, while in the meantime the heir of tailzie was left to

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starve, and without the possibility of obtaining a proper education, while the destination to and obligations incumbent on the younger children are preposterous, perplexed, and inextricable. Barholm's settlements are so constructed that they must stand or fall together; the good cannot be separated from the bad. If any be such as law and good conscience must condemn, the deeds must be reduced in toto; they receive no support from the law of entail. It was, before the statute 1685, justly doubted whether clauses de non alienando et contrahendo were consistent with the nature of property or the general principles of law; but in every view the power given by the statute will not authorize a testator to indulge in whimsical conceits, or injure his family by irrational, extravagant, and preposterous provisions, locking up estates for ages, securing from them the least possible advantage to his family, and leaving his immediate descendants in poverty or ignorance. Now it is impossible to deny, regarding the deeds separately or collectively, that this is not their character. Looking to the number of younger children born, and the possibility of others being born, and the time that must have elapsed before their provisions could have been made up, they might be fifty years of age before they Could enjoy these provisions; in any way, not less than twenty-five years would have been requisite to raise provisions to five younger children. If a settlement, having such an object, be sustained, there is no point where you can stop. Ingenious conveyancers will speedily devise clauses whereby not merely property, but the first fruits of that property, may be locked up for generations. But besides these settlements being irrational, extravagant, illegal, and contra bones mores, they are in many particulars utterly inexplioable.In defence it was stated:—Barholm held without limitation the estates which had descended to him; he was equally in uncontrolled dominion of the estates he had bought; and it is an incident of property that the owner shall have full power of directing its descent after his death. This should be treated as a mere question of power. He could have given his whole estates to a charity; much more can he cut and carve out what interest he intends shall devolve upon his own family. There was nothing to prevent Barholm to settle the fee on one person, and yet for any number of years settle the rents on others, excluding for the time the fiar. Aware of this, the pursuer exaggerates the features of the settlements, challenges and attempts to represent them as preposterous and irrational. But that proceeds on palpable misrepresentation of the provisions and the facts under which they may be applicable. In the true view of the subject, the testator did not dispose of more than ten years' rents of his property; but taking it at twenty-five, surely that was legally within his power. Could he not, by means of a conveyance to trustees, have tied up the rents for twice the time; and where is the difference in principle? In point of fact, the children being very young, the ends of the trust behoved, morally speaking, to be accomplished long before the heir was of age. Barholm therefore had the power—he has not exceeded in point of time—and there is nothing in the conception of the provisions that should subject them to the heavy penalty of being utterly reduced.Upon the report of Lord Drummore, the Lords, before answer as to the reasons of reduction ex capite lecti, remit to the Lord Ordinary to admit the same to the pursuer's

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Respondents .—(As to title.) The appellant has no legal title or interest to insist in reduction of the trust-deed, seeing that the late Lord Strathmore was proprietor in fee simple of his estates, and by the deed of entail and relative deed of nomination absolutely excluded the appellant from any share in the succession. These deeds are not affected by the objections pleaded against

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probation; and, having considered the other reasons of reduction, find the same relevant and proven, and therefore reduce the haill deeds in question, and decern and declare accordingly.Counsel for pursuers, Alexander Lockhart—for defenders, Robert Craigie.

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* The decision, M'Nair v. M'Nair , Bell's Reports, 546, was also relied on by the respondents. The following are the notes of the opinions of the Judges given on the two occasions when that case was advised. They are taken from the manuscript observations made by Lord President Campbell on his copy of the printed papers.first advising .Lord President .—In one particular the deed appears to be inconsistent; for by a clause in the principal deed certain sums are ordered to be paid to the male and female descendants at their age of twenty-five, besides other sums to indigent children, without being limited to the yearly produce of the estate, and therefore affecting the stock itself; and by the codicil there is to be a division of the free residue of the produce at the end of every seven years, yet it is evidently taken for granted in this codicil that the stock is to remain entire; consequently there may be no fund out of which the £50 and £25, &c. can be payable.The whole is a very whimsical if not inextricable arrangement, and resembles very much the case of Lady Dick's settlement, which was intended in like manner as a perpetual mortification, or, as she called it, “a cautore” for her distressed children and grandchildren, under the conduct of her son Sir John Cuningham and her daughter Lady Dalrymple, with power to them to name succeeding trustees, her jewels being deposited in a strong box for the use and ornament of her posterity to the tenth generation, and then to her nearest in kin. Her effects in general were also limited in the same manner to remain in trust for her posterity to the tenth generation for their maintenance and education, &c. The grounds of challenge were, 1. That the trustees had repudiated it; 2. That the destination was so irrational and whimsical as to be ultra vires of any proprietor; 3. That it is vacated ex presumpta voluntate defuncti from the eviction of a considerable part of the estate, the remainder not being sufficient to answer the purposes intended. Upon the second head the case of Barholm was quoted, and upon the third that of Sir James Rochead's settlements, where a large sum of money having been destined for

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Lord Chancellor .—My Lords, this is a case of considerable interest, and of the greatest possible importance to the parties. It arises upon an appeal relative to three deeds respecting the same

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purchasing lands to be added to the entailed estate, and the heirs of line having prevailed in a reduction of the tailzie of the estate, the destination of the money was found not to subsist, the settlement having failed in its principal object. The first objection received an answer from decisions finding that a settlement might subsist though the trust fell; and it is probable that, in setting aside Lady Cuningham's settlement, the Court went upon the other two grounds.A settlement in the form of a perpetual trust upon the heirs themselves is a novelty in the law of Scotland, neither agreeable to any principle of common law, nor deriving any support from the act 1685. The Court went far enough in the case of Lord Hyndford, where a temporary trust for special purposes was supported; and in that case the trust was not vested in the heir himself, but in third parties.Suppose the pursuer were to make up complete titles as heir at law, and to sell the subjects, a purchaser would be safe upon the faith of the record, and those concerned in the succession would only have an action of damages against him; and suppose all those at present in existence were to agree to the measure, and to waive such action, the remedy at a distance of time to persons yet unborn might be very ineffectual.But taking the case even as it stands at present, the reasons of challenge appear to be very strong, though the fact is not yet sufficiently cleared up as to the second ground, viz. the alleged insufficiency of the funds.Monboddo .—Deed legal, and ought to be sustained.Swinton .—For setting it aside. Testamenti factio est juris civilis, when a man ceases to live, cannot hold his property. It is the civil law, not the law of nature, that allows testamenti factio and substitution; but still the heir, when he succeeds, may do as he pleases. This case not a tailzie within the act of Parliament.Justice Clerk .— To overturn wills of defuncts upon ideas of rationality is very delicate. If it be unlawful it ought to be set aside, but not otherwise, if it be at all extricable. It has lasted already twelve years, and may continue till it becomes inextricable. Entails introduced long before act of Parliament.

President .—For setting aside the deed.

Eskgrove .—Had an inclination to set it aside, but hesitate at present, at the instance of the heir, who represents the granter.Dunsinnan and Henderland .—Same.Alva .—For setting it aside.second advising .Lord President .—The deed in question may be considered as meant for two purposes. 1. To settle the succession upon the eldest son, with the burden of provisions to the younger children and widow, 2. To create a perpetual trust in the heirs called to the succession, for behoof, not only of themselves, but of all the descendants of the granter to the end of time, so long as any should exist.The first purpose was rational and legal, and the deed ought so far to have effect if it be possible to sustain it in part, and set it aside quoad ultra. The mode of provision is indeed somewhat unusual, by paying so much per day, or so much a year, to each child during life; but it is easily enough extricable in that shape; and the provisions to the widow are likewise reasonable, as well as the allowance to a particular servant and his wife so long as they continue performing the service required.

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Neither is there much to be said against the provisions upon the widows of the sons, or even against the clause by which certain sums are given to each of the grandchildren by his six children when they attain to the age of twenty-five.The result of these different clauses put together, so far as regards the younger children and grandchildren, is, that certain annuities are given to the children themselves, and the fee of certain sums to the grandchildren by these children.Had the deed stopt there, Robert the eldest son would just have taken the succession with the burden of making the payments thus ordered to his mother and brothers and sisters, and their children attaining to a certain age; and there would have been nothing in this case to distinguish it materially from any other settlement in favour of an eldest son, with the burden of provisions to the rest of the family.But the deed goes much farther by creating or attempting to create a sort of tailzie, under the name of a trust of a very anomalous kind, to have endurance, if not for perpetuity, at least so long as any descendants of the six children of the granter shall exist, which may be for many generations, and perhaps for ever, and including an infinite number of persons.It is this object of the deed, and all the clauses relative thereto, that are not only whimsical, irrational, and singular in their nature, but in a great degree absurd, inconsistent, and inextricable. In the very outsetting it is said that the granter means to preserve and secure his estate for the support and subsistence of his descendants in all time coming, and it is plain that he meant to settle the succession upon his descendants, whether of the male or female line; but inadvertently he disinherits his daughters, and calls in, failing the heirs male of his son's body, his own collateral heirs male, in prejudice of his whole female descendants, even the daughters of his son and their issue; and their collateral heirs male, upon succeeding, will be entitled to the provision made for them. It may be true that he meant by the words “my own heir male” to call only the heirs male of his body; but this limitation cannot be supplied, as the Court found in the late case of Miss Hay v. Hay of Drumelzier , concerning the estate of Linplum.The appointing each succeeding heir to be a trustee, and to be liable in a certain distribution among the descendants progressively at their age of twenty-five in all time coming, with certain weekly allowances and apprentice fees in different events, the heir himself being factor, with an allowance for factor fee, to keep books, hold quarterly meetings, render accounts, and to submit questions and disputes to certain official arbiters, would, if sanctioned by a judgment of this Court, lay the foundation of a new species of entail not hitherto recognised in the law of Scotland, and therefore of dangerous example, besides being wild and extravagant in its nature.The principles which regulate tailzied fees in Scotland are well known, and are fully discussed in the case of Cassillis. They are different from those of an English entail; for with us the whole fee is in each succeeding heir, but subject to restraints and limitations arising from the clauses prohibitory, irritant, and resolutive, which give a jus crediti to the subsequent heirs, entitling them to challenge deeds of contravention, and which, by the act 1685, are effectual against third parties when duly registered in a certain form.Trust settlements are likewise usual with us, and admit of being easily extricated when granted for certain reasonable and temporary purposes, such as payments of debts, and securing provisions to wives and children. In the late case of Lord Hyndford's settlements the Court went as far as possible to sustain a trust-deed where the purposes went

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a little beyond what has usually been thought reasonable and consistent with the powers of a proprietor with regard to the disposal of his estate after his death; but lawyers differed with regard to the validity of that deed, though temporary in its nature, and calculated for purposes which, in the case of a noble family, were not thought inexpedient or unwise.Even in that case, however, third parties were named as trustees, and the non-acceptance of these trustees was not thought a sufficient reason for defeating the deed, because this Court might have appointed other trustees to follow out the lawful purposes of such a trust.Where an estate is given to a corporation, or to an hospital or charity, the management can only be in trustees or administrators; but in such a case the property or substantial right is in the corporation or community to which it belongs, and the case would be just the same if the estate were purchased, the corporation being a person in the eye of law which can hold property, but the management necessarily conferred upon trustees or factors acting for the real owner.The case of a perpetual trust in the individual owner of an estate, himself and his heirs for ever succeeding to that estate, declaring the right to be vested in them indefeasibly for certain ends and purposes, is a novelty both in law and practice. The mere name of a trust cannot tie up their hands, for if they succeed to the fee of the estate they must have the power of disposal, unless in so far as they are limited by clauses prohibitory, irritant, and resolutive, in the usual form, and having the usual effect of an entail by the law of Scotland, or come under an obligation that it is actionable. Thus, if I should settle my estate upon my eldest son and the heirs of his body, whom failing, my second son and the heirs of his body, &c., declaring the same to be a trust in my said eldest son and the heirs of his body, and each of the succeeding heirs for themselves and the heirs called after them, without tying them up by clauses prohibitory, irritant, and resolutive, it is thought that this would be neither more nor less than a simple destination.In the answers it is said, the object of this deed was to secure the capital of the granter's fortune to his children and their descendants, and that this trust should be perpetual. What is this but an entail in a new form, viz. that of a trust vested in the heirs themselves for behoof of themselves and those interested in the succession, i. e . among whom the rents or produce are to be divided in all time coming, not for the preservation of the family by having one representative succeeding another in a certain order, and enjoying successively the whole benefit of the estate, but by a partition of the rents among all the members of the family, and still carrying on the succession to the remotest generation, whereby perhaps in time they would not have a shilling or a penny each person.But, further, when the deed and codicil are attended to, this very object, which is held out as the sole purpose of the deed, seems to be entirely frustrated by the clause in the printed codicil, compared with the deed.Perhaps the granter meant that the yearly produce only should be lent out as directed; yet the stock mentioned, and which, failing descendants, was to go to the hospital, seems to be the whole residue, whether consisting of capital or interest.Perhaps, too, the dividends were only meant to reach the yearly produce and interest after satisfying other purposes; yet, when explained by the words which go before and those which follow after, it seems difficult to give it this limited construction; so that at the end of every seven years all the subjects on hand, after satisfying the

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In humbly giving the advice I am about to offer your Lordships to confirm this decree, after what I have said, I shall not be

Footnote

annuities and other provisions then actually paid or payable to persons existing, are made the subject of immediate distribution; and if in a year or two thereafter so many more claimants should exist, there would be no fund for them till seme of the preceding annuitants should die out, or a proportional defalcation would take place; or even if we should suppose that these septennial dividends were to be confined to the interest, leaving the capital entire, still each payment of £50 would encroach upon the capital if there was no sufficient fund on hand arising out of the interest; and in this way the intended perpetuity would be frustrated, and the deed rendered inconsistent with itself. If this settlement can be supported upon any ground, it must be upon the footing of the heir having come under an obligation by acceptance of the deed, and possessing under it, to pay these eventual provisions; at same time this will not tie up his hands from selling, &c.; neither can he be obliged to find caution to make them effectual.Hailes .—Interlocutor goes too far in supporting this deed in whole—deed cannot subsist for ever—intended for a perpetuity, in same way as entail, but an entail comes to an end—would be for finding that the payments must be made without defalcation .Swinton .—Not an entail, and no instance of such a settlement being sustained. Suppose an estate ordered to be divided into square yards.Eskgrove .—No ground for setting it aside. If he may choose stranger heirs, why not his heirs? besides, this pursuer bound.Justice Clerk .—Great rule is, that the will of the defunct must have effect. If it becomes inextricable it will reduce itself. We cannot divide the deed. Cannot the absurd clauses be set aside, e.g . suppose they were immoral, impossible, &c.?Henderland .—Testam. factio juris gentium here not inextricable, at present may be supported hoc statu.

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Now then we come to the grounds on which it is argued that the Scotch law is against the validity of these deeds. I think it clear, in the first place, that the pursuer had a title to pursue; that indeed has scarcely been disputed at the bar here. I take it to be clear, in the next place, that you must construe these different deeds together, and as parts of one conveyance. It will be less necessary to dwell much upon this second point; because I am of opinion the Court below have come to the right judgment in saying this is not, by the law of Scotland, such a perpetuity as a man may not create with regard to real property of which he is the unlimited fiar. Now there is no dictum of any text-writer on either side. There is also no decision on all-fours with the present case; those decisions on which the appellants rely appear to me not applicable to this question. Much doubt is raised on the Barholm case. I do not deny that it was well decided, and that there have been subsequent decisions in which it has been so far referred to that we cannot regard it as a case which has slept in the books, or been repudiated as against principle, or fallen into a kind of nullity from not having received the sanction of the profession, like Fitzroy v. Gwillim , and one or two other cases admitted not to be law in Westminster Hall, though never directly over-ruled. But the question is,—does the Barholm case apply to this? And when I look to the decision there, I find the report of it by Lord Elchies as follows:
“This was a question of reducing two most ridiculous entails and trust-rights, whereby, excepting small aliments to the heir, the rents were to be applied for many years in purchasing other estates, and entailing them in the same manner. We all agreed to reduce the whole deeds, remitting to the Ordinary to allow the pursuer to prove the reason of death-bed against the last deed. I inclined to give that proof first, though I agreed in opinion as to the other reasons; but the Court did as above.”

But on looking into the papers, there appears clearly to

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There are other cases which your Lordships have been referred to, and among these that of Hyndford; but M'Nair v. M'Nair , and the authority of Sir Hay Campbell, have been much pressed on the attention of the House. Here is Sir Ilay's argument in that case:
“A settlement, in the form of a perpetual trust, upon the heirs themselves, is a novelty in the law of Scotland, neither agreeable to any principle of common law, nor deriving any support from the act of 1685. The Court went far enough in the case of Lord Hyndford, where a temporary trust for special purposes was supported; and in that case the trust was not vested in the heir himself, but in third parties.”
In this case of M'Nair, it is quite clear they speak of a perpetuity in terms, yet it is evidently taken for granted in this codicil that the stock is to remain. Certain sums are ordered to be paid to the male and female descendants at the age of twenty-five; and now they say, that this is so irrational and whimsical as to be ultra vires of any proprietor, because the fund might not vest in any proprietor until the expiration of so many years as would come within the description of a perpetuity. It is either a perpetuity—in which case the decision does not apply at all—or it is not a perpetuity. Now, let us look at the decisions:—First, the Hyndford case is distinctly stated by Lord President Campbell to be for a limited number of years, and to have been sustained. What do they say in this case of M'Nair and M'Nair? Lord Monboddo, a great authority, says, “The deed is legal, and ought to be sustained.” Lord Swinton is for setting it aside, on the ground, that “when a man ceases to live he cannot hold his property.” Now, really, my Lords, if a learned Judge is represented as stating such a reason as this, which is contrary to all law, that a man is to have no power of disposing of his property, real or personal, after his decease, what possible conclusion can we come to, except either that the learned Judge never said so, and that therefore we have no right to know he was for setting the deed aside, or, that the learned Judge, on this occasion, did not exercise

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“It is civil law, and not the law of nature, that allows testamenti factio and substitution; but still the heir, when he succeeds, may do as he pleases.”
To be sure; but the question is, When is he to succeed; and to what period is the succession to be postponed? “This case is not a tailzie within the act of parliament.” That is, “You are trying to do per indirectum what the law will not allow (and there every one must go along with his Lordship); you must not get rid of the act by a sidewind; you must either make it an entail or not. If it is not an entail, it has no protection; if it is a tailzie, it must have the fencing clause and registration.” Then observes the Justice Clerk, (one of the greatest lawyers that ever sat on the Bench in Scotland, and one of the clearest-headed men, and of the most masculine understanding, I had ever the good fortune to hear argue,) “To overturn wills of defuncts upon ideas of rationality is very delicate. If it be unlawful, it ought to be set aside, but not otherwise, if it be at all extricable. If it is unintelligible and confused, then it is set aside, not as a perpetuity, but because you cannot make sense of it; so was the case of Barholm, perhaps to a certain degree. It has lasted already twelve years, and may continue until it becomes inextricable. Entails were introduced long before the act of parliament.” I say that the result of this is, that the Lord Justice Clerk was against setting aside the deed. It is not very distinctly given. The President was for setting aside the deed, but he considered it a perpetuity. Lord Eskgrove had an inclination to set it aside, but he hesitated at present, the suit being at the instance of the heir who represented the granter; Lord Dunsinane and Lord Henderland the same—so they did not give a decision on the subject; and Lord Alva, a judge of little authority, was for setting the deed aside. Then comes the Lord President Campbell's second argument. He goes over the ground, that it went to create a perpetual trust in the heirs called to the succession, for behoof, not only of themselves, but of the descendants of the granter, to the end of time, so long as any should exist; and yet, notwithstanding this, you see three judges—among them one of great learning—are of opinion that the deed should stand, and three do not decide the reverse; yet this is a perpetuity, and how then can we say the law of Scotland abhors perpetuities? “The deed,” says his Lordship, “goes much farther, by creating, or attempting to create, a sort of tailzie, under the name of a trust of a very anomalous kind, to have endurance, if not for perpetuity, at least so long as any descendants of the six children of the granter shall exist, which may be for many generations, and perhaps for

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“I am not against this because it is an entail—it is either an entail or nothing—if it is not an entail it is unknown in law—a novelty—an anomaly in the law; and if it is an entail, where are the fencing clauses, and where is the registration?”
Then, on that ground simply he puts it.

I have looked into the papers in the Ilyndford case, and they raise

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Mr. Attorney-General .—I apprehend this is a case in which your Lordships will think the trust-property should bear the costs.Lord Chancellor .—I shall propose that reasonable and ordinary costs on both sides should be paid out of the estate. I never saw a clearer case for so doing. This appellant was entitled to have this question thoroughly discussed, and to that extent there is no reason whatever to spare the estate; but if I find the expense

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The House of Lords found, That the appellant had a title to pursue this action; and with this finding it is ordered and adjudged, That the interlocutor complained of be affirmed; and it is further ordered and adjudged, That the cause be remitted back to the Court of Session, with instructions to that Court to direct the reasonable costs incurred by both parties relative to this cause to be paid out of the trust-estate; and to do further in the said cause as to the Court shall seem fit, and as shall be consistent with this judgment.Appellant's Authorities.— Appellant's Authorities.— 1685, c. 22; 39 & 40 Geo. III. c. 98; Randall on Trusts, pp. 46 and 83; M'Neill, January 27, 1826 (4 Shaw and Dun. No. 266; Ker, January 23, 1747 (12,987); Earl of Wemyss, November 17, 1815 (F.C.); Mordaunt, March 9, 1819 (F.C.); M'Culloch, November 28, 1752 (ante) and Elchies voce Tailzie, No. 48; Thelluson's Case, and authorities quoted, 4 Vesey, 227; affirmed, 11 Vesey, 112; 2 Blackstone, c. 1, p. 10; 2 Hen. Antiq. tit. x.; Kames, His. Tr. p. 134; 1 Bell's Com. 38; Elchies, voce Tail. No. 48; Crawfurd, Nov. 17, 1795 (14,958), and H. of L., March 14, 1806; Hill, April 14, 1826, (2 Wilson and Shaw, No. 11); Crichton, May 12, 1826 (3 Wilson and Shaw, No. 17). Respondents' Authorities .— 3 Ersk. 8, 98; Rowan, Nov. 22, 1775 (11,371); 2 Bligh, p. 619, 655; Moir, March 2, 1820 (F.C.); Batley, Feb. 2, 1815 (F. C.); Thelluson's case, 4 Vesey, 227; affirmed, 11 Vesey, 112; 3 Hargrave, Juris. Exer. p. 138; M'Nair (Bell's Cases, 546).Solicitors: Vizard and Co.— Spottiswoode and Robertson,—Solicitors.