William Alexander Bryden and Others . - Lord Advocate (Jeffrey - Stuart v. Jessie Bryden or Saunders and Others - Dr. Lushingto - Murray [1833] UKHL 6_WS_354

UKHL
William Alexander Bryden and Others . - Lord Advocate (Jeffrey - Stuart v. Jessie Bryden or Saunders and Others - Dr. Lushingto - Murray
[1833] UKHL 6_WS_354
Circumstances in which an obscurely worded deed of settlement was interpreted (affirming the judgment of the Court below) to mean, 1. That the division of the property was bipartite, or per stirpes, amongst the families of two nephews; and, 2. That trustees were bound to denude in favour of the minor children of the elder nephew when the eldest child of the younger nephew had attained twenty-one years of age.

Subject_ Expenses. —

Both parties found entitled to their expenses out of the property bequeathed.James brown of Westwood, who died in 1815 without issue, executed a deed of settlement in 1813, at which time he had two nephews, John and Adam Bryden. John, the elder, who was heir-at-law to his uncle, married Esther Craig in 1809, but had no issue at the time the settlement was made, or at the death of Mr. Brown. Adam, the younger nephew, had died previous to the making of the settlement, leaving two daughters. The deed was as follows:—lands and others after mentioned, for the love, favour, and affection I have and bear to Mary Johnston my spouse, and the other persons after named and designed, and for other good causes and considerations me hereto moving, have given, granted, and disponed, as I do hereby give, grant, and dispone, from me, my heirs and successors, to and in favour of the said Mary Johnston my spouse, in life-rent, during all the days of her lifetime, in the event of her surviving me, all and whole my lands of Westwood, with the whole houses, biggings, yards, woods, mosses, parts, and pertinents thereto belonging, as presently possessed by myself, all lying within the parish of Tundergarth and county of Dumfries; and likewise have given, granted, and disponed, as I do hereby, with and under the conditions, provisions, burdens, restrictions, declarations, and reservations after specified, give, grant, and dispone, from me, my heirs and successors, to and in favour of William Grierson, only son procreate of the marriage between William Grierson in Bucklerhole and Jean Johnston, daughter of William Johnston of Bengali, James Broatch, eldest son procreated of the marriage between John Broatch in Boraxfield and Agnes Johnston, also daughter of the said William Johnston, and William Walker, son of Alexander Walker in Fourmerkland, and to the survivor or survivors of them, equally amongst them, not only the foresaid lands of Westwood and pertinents thereof, after the decease of the said Mary Johnston my spouse, in the event of her surviving me, but also all and whole my land of Scalehill and Herds Bogside, together with the whole houses, biggings, yards, mosses, muirs, and pertinents thereto belonging, all lying within the parish and county aforesaid, to be by them or survivor of them occupied and possessed aye and until the eldest surviving child or children to be hereafter lawfully procreated of the body of John Bryden, merchant in Lockerbie, during his present marriage with Esther Craig, or any future marriage, and the eldest lawful child or children of Adam Bryden, some time in Smallholm Burn, deceased, my nephews, or either of them, shall arrive at the age of twenty-one years complete, at which period the said William Grierson, James Broatch, and William Walker, and the survivor or survivors of them, then in the possession of the said lands, are hereby expressly bound and obliged, as they and each of them by acceptation hereof become bound and obliged, to redispone and denude themselves thereof in favours of the child or children of the foresaid John and Adam Brydens before described; and upon that child or these children attaining the age of twenty-one years complete as aforesaid, I hereby revoke, recall, and annul the foresaid disposition in favour of the said William Grierson, James Broatch, and William Walker to all intents and purposes, the same as if it had never been made and granted, together with all that has followed thereon in their name and favour; and I hereby give, grant, and dispone to and in favour of the children lawfully procreated of the body of the said deceased Adam Bryden, and the children to be hereafter lawfully procreated of the body of the said John Bryden, during his present or any future marriage, equally amongst them, share and share alike, the heirs male of each of their bodies always excluding the female, and in the event of there being no male child or children in either or each of their families, then and in that case the daughters shall succeed as heirs-portioners, and the heirs and disponees of the said persons who shall succeed in virtue hereof, whether male or female, heritably and irredeemably, all and whole the foresaid lands of Westwood, after the decease of the said Mary Johnston, in the event of her surviving me, as also all and whole the foresaid lands of Scalehill and Herds Bogside, with the whole houses, biggings, yards, parts, pendicles, and universal pertinents of the said respective lands, lying and described as aforesaid, together with all right, title, and interest whatsoever which I, my predecessors or authors, had, have, or may anyways claim or pretend to the lands and others above disponed, or any part thereof, but always with and under the conditions, provisions, burdens, restrictions, declarations, and reservations before and after specified; declaring always, as it is hereby expressly provided and declared, that the children brought forth by Janet Irving, daughter of John Irving in Sarkshields, in consequence of any pretended marriage or connexion between her and the said John Bryden, nor none of these children's heirs, shall have right, title, or interest, in law or in equity, to succeed me in any part of my estates, real or personal, as pretending to represent the said John Bryden or otherways, and I hereby expressly exclude and debar them from any succession accordingly. It is likewise hereby expressly provided and declared, that the said William Grierson, James Broatch, and William Walker, or the survivor or survivors of them, upon the event of the lawful child or children before described of the beforedesigned John Bryden and Adam Bryden, deceased, attaining the years of majority, and entering into the possession of the lands and others before disponed, shall not be bound to account for any of the rents of these lands received by them during their possession, nor shall any action lie or be competent to the heirs of the said John and Adam Bryden against them for the same; in which lands and others above disponed, with the pertinents, and with and under the conditions, provisions, burdens, restrictions, declarations, and reservations before and after specified, I bind and oblige me, my heirs and successors whomsoever, to infeft and seise the said Mary Johnston in life-rent, for her liferent use allenarly, and the said William Grierson, James Broatch, and William Walker, and survivor or survivors of them, and the heirs of the said John and Adam Bryden, described in the dispositive clauses of these presents, and their foresaids in fee,, and that by two several infeftments and manners of holding,—the one thereof to be holden of me and my foresaids in free blench for payment of a penny Scots money, upon any part of the ground of the foresaid lands, at the term of Whitsunday yearly, if asked only, and the other of the said infeftments to be holden from us, of and under our immediate lawful superiors thereof, as freely as I hold the same myself, and that either by resignation or confirmation or both, the one without prejudice of the other; and for completing the said infeftment by resignation I hereby constitute and appoint and each of them, jointly and severally, my lawful and irrevocable procurators, giving, granting, and committing full power and warrant for me and in my name to resign and surrender, as I hereby resign, surrender, and overgive, all and whole the foresaid lands of Westwood, Scalehill, and Herds Bogside, as described in the dispositive clause of these presents, and herein held as repeated, brevitatis causa, in the hands of my immediate lawful superiors of the same, or of their commissioners in their name, having power to receive resignations, and thereupon to grant new infeftments in favour, and for new infeftments of the same to be given and granted to the said Mary Johnston in life-rent, and to the said William Grierson, James Broatch, and William Walker, and survivor or survivors of them, and to the heirs of the said John and Adam Bryden, before described in the dispositive clause of these presents and their foresaids, in fee, heritably and irredeemably, acts, instruments, and documents upon the premises to ask and take, and generally every other thing thereanent to do which I could have done myself if present, or which to the office of procuratory in such cases is known to belong, promittens de rata, but always with and under the conditions, provisions, burdens, restrictions, declarations, and reservations before and after specified, and which are appointed to be engrossed in the infeftments and charters to follow hereon. Moreover, I hereby assign and convey to and in favour of the said Mary Johnston my spouse in life-rent, and for her life-rent use allenarly, during all the days of her lifetime, in the event of her surviving me, not only the whole rights, titles, and evidents of the said lands of Westwood, with all that has or may be competent to follow thereon, but also the rents, maills, and duties of the said lands, from and after my decease; as also I hereby give, grant, assign, and dispone to and in favour of the said Mary Johnston in life-rent, in case she survive me, all and whole my stock and crop that may be at my decease upon the lands of Westwood then in my possession, also my household furniture, blankets, bed, and table linen, and silver plate, during her life, with power to her to dispose of the one half thereof as she may think proper, but the other half thereof, after the decease of the said Mary Johnston, I hereby give, grant, assign, and dispone to and in favour of Agnes Bryden, my niece, and her children, if any, equally between them; and further, I hereby assign and convey to and in favour of the said William Grierson, James Broatch, and William Walker, and to the survivor or survivors of them, and to the heirs of the foresaid John and Adam Bryden before described, and their foresaids, not only the rights, titles, and evidents of and concerning the said lands of Westwood, and rents, maills, and duties of the same, from and after the death of the said Mary Johnston, and the rights, titles, and evidents of the said lands of Scalehill and Herds Bogside, with all action and execution competent to me thereupon, but also the rents, maills, and duties of the said lands, from and after my decease, with full power to uplift and discharge them, but always with and under this restriction and declaration, as it is hereby expressly conditioned and declared, that it shall not be in the power of the said William Grierson, James Broatch, and William Walker, and survivor or survivors of them, to sell, alienate, wadset, impignorate, or dispone the foresaid respective lands or any part thereof, either irredeemably or under reversion, or to burden or affect the same in whole or in part with debts or sums of money, infeftments of annual rent, or any other burden or servitude whatever, or to grant any leases of the said lands to a tenant or tenants of a longer endurance than three years, and that at the highest yearly rent that can be obtained therefor at the time; and also declaring, as it is hereby expressly provided and declared, that upon the said William Grierson, James Broatch, and William Walker, and survivor or survivors of them, and the heirs male or female before described of the said John and Adam Bryden, succeeding to me in virtue hereof, conform to the dispositive clause of these presents, shall be bound and obliged, as they by acceptation hereof become bound and obliged, to pay to the said John Bryden a yearly annuity of 20 l . sterling, beginning the first term's payment thereof at the first term of Whitsunday or Martinmas which shall first happen after my decease for the year immediately preceding, and so on yearly thereafter during his natural life, with a fifth part more than each term's annuity of liquidate penalty in case of failure; and also to pay my sickbed and funeral expenses, and all my just and lawful debts, and the following legacies, which I hereby leave and bequeath to the persons after named and designed, videlicet,” &c.

“I, James Brown of Westwood, heritable proprietor of the

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Then follows an enumeration of particular legacies, after which this clause:—

shall enter to the possession of the foresaid lands in virtue hereof, to discharge the foresaid debts and legacies, I hereby give, grant, assign, and dispone to and in favour of them or either of them, whom failing, to the heirs of the aforesaid John and Adam Bryden, male or female, as before described, all and sundry debts and sums of money constituted by personal bonds or bills, decreets, accounts, or otherwise, arrears of rent, farming utensils, goods, gear, and effects of every kind and denomination, which shall belong or be owing to me at the time of my death, wherever the same may be situated, together with the whole instructions of the said debts, excepting and reserving always therefrom, as it is hereby specially excepted and reserved, the whole stock and crop, growing or cut, that may be upon the said lands of Westwood at my decease, and likewise the household furniture before conveyed and assigned to Mary Johnston my spouse, and the foresaid Agnes Bryden and children, surrogating hereby and substituting the said William Grierson, James Broatch, and William Walker, whom failing, the heirs male or female of the foresaid John and Adam Bryden before described, in my full right and place of the premises, with power to them, in the order of succession foresaid, after my decease, to intromit with the said debts and effects, uplift, discharge, use, and dispose thereof, the same as I could have done myself if in life. And considering that I hold a conveyance from Mungo Dobie, writer in Dumfries, now in Lockerbie, dated the 13th day of November 1805 years, to an heritable bond over the lands of Scrogs for payment of 500 l . sterling, redeemable, if not paid up before my decease, it is my will and I hereby appoint that the yearly annuity of 20 l . sterling, left by me to the said John Bryden as aforesaid, shall be paid from the annual interest arising therefrom so long as the said Mary Johnston my spouse is in life, and at her death I hereby give, grant, assign, and dispone the said heritable bond of 500 l . sterling, and conveyances thereof in my favour, to and in favour of the lawful children hereafter to be procreated of the body of the foresaid John Bryden during his present or any future marriage, the lawful children procreated of the body of the foresaid deceased Adam Bryden, and the children lawfully procreated or to be procreated of the bodies of the before-designed Agnes Bryden and Janet Bryden, spouse of Andrew Dickson of Shaw, my nephews and nieces, also the surplus money, if any, after paying the foresaid legacies and every other debt justly owing by me, and that equally amongst them, share and share alike. And further, as I have full confidence in the integrity of the saids William Grierson senior, John Broatch, Alexander Walker, and William Martin, I hereby nominate and appoint them to be my sole executors and trustees for the express purpose of seeing this deed of settlement carried into full and final execution, and who are to receive a reasonable gratification for their trouble; declaring that any two of them shall be a quorum, and that the persons succeeding, before named, while in minority, shall and are hereby bound to do no act or deed relative hereto without their advice and consent; declaring also, that my said executors and trustees shall not be liable for omissions, but only for their own actual intromissions, nor shall they be liable for one another, but each of them for his own actual intromissions only. And further, I hereby revoke and alter all former dispositions, assignations, or deeds of settlement executed by me relative to the foregoing lands of Westwood, Scalehill, and Herds Bogside; only declaring, that any other deeds executed by me relative to my other property not herein mentioned shall stand sure and be as effectual as if this deed had not been made or granted; reserving always not only my own life-rent right of the premises and subjects before disponed, but also full power and liberty to alter and revoke these presents, in whole or in part, as I shall think fit, at any time in my life, or even on death-bed; dispensing with the not-delivery hereof, and declaring these presents to be a good, valid, and effectual deed, though found lying by me at the time of my death, or in the custody of any person to whom I may entrust the same undelivered,” &c.
“And in order to enable the said William Grierson, James Broatch, and William Walker, in case they

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On the 14th of July 1813, being two days after the date of this deed, Mr. Brown the testator executed a disposition and assignation, which, inter alia, contained this clause:—
“And now, for the love, favour, and affection I have and bear to the children to be hereafter described, and for other good causes and considerations, have given, granted, assigned, and disponed, as I do hereby give, grant, assign, and dispone from me and my heirs, to and in favours of William Grierson in Bucklerhole, John Broatch in Boraxfield, Alexander Walker in Fourmerkland, and William Martin, writer in Lockerbie, as trustees nominated and appointed by me, for behoof of the surviving child or

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Subsequent to the death of Mr. Brown, John Bryden had a family of four sons and four daughters; and by them a declarator was raised against the trustees and the respondents, (the children of Adam Bryden,) concluding “That, in virtue of the foresaid disposition and deed of

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Lord Corehouse , on the 10th July 1830, pronounced this interlocutor:—

to be paid out of the trust estate, and remits the account, when given in, to the auditor to be taxed, but finds no other expenses due. Note .—The settlement admits of various constructions. The dispositive clause could not have been more obscure, though industriously written to conceal the testator's will, and no other clause in the deed throws any light upon it. The Ordinary has adopted the construction which, upon the whole, appears to him the least objectionable, but with little confidence in his opinion.”
“The Lord Ordinary, having heard counsel for the parties, finds, that by the settlement of the late James Brown of Westwood, referred to in the libel, his widow, Mary Johnston, is entitled to the life-rent of the lands of Westwood: Finds that the sons born or to be born of John Bryden are entitled to one half of the said lands of Westwood, subject to the widow's life-rent, and to one half of the lands of Scalehill or Herds Bogside, share and share alike: Finds that the daughters of the late Adam Bryden are entitled to one half of the lands of Westwood, subject to the widow's life-rent, and to one half of the lands of Scalehill or Herds Bogside, as heirs portioners: Finds that the defenders, the trustees under the said settlement, are bound to denude, in terms of these findings, in favour of the sons of John Bryden, as soon as the eldest son arrives at the age of twenty-one years, good and sufficient security being found by the sons then in existence that the interests of any son or sons who may afterwards exist shall not suffer prejudice thereby; and that the trustees are bound to denude, in terms of the said findings, in favour of the daughters of the late Adam Bryden, as heirs portioners, as soon as the eldest daughter attains the age of twenty-one years, and decerns and declares accordingly: Finds the defenders, the trustees, entitled to expenses of process,

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All parties having reclaimed, the Court, on the 17th February 1831, pronounced this interlocutor:—
“Adhere to the interlocutor reclaimed against, with this variation, that the trustees were and are bound to denude in favour of the sons of John Bryden, in so far as regards their one half of the properties in question, as at the period when the eldest daughter of Adam Bryden attained the age of twenty-one: Find the pursuers and defenders appearing equally entitled to the expenses respectively incurred by them, out of the properties in question, the first and readiest of the rents and profits thereof; appoint accounts of said expenses to be given in, and remit the same to the auditor to tax and to report; and, quoad ultra, refuse both reclaiming notes, and allow separate extracts to go out at the instance of the daughters of the said Adam Bryden and the sons of the said John Bryden, and decern.” *
Against this interlocutor the children of John Bryden brought an appeal.

Footnote

* 9 S.D. 457.

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Appellants .—If the eldest son of John Bryden is not entitled to the whole lands as the sole heir male of the body of John Bryden or Adam Bryden, the whole lands must belong to the sons of John Bryden, born or to be born, and that to the exclusion both of the two daughters of Adam Bryden and the daughters of John Bryden. Under any circumstances the lands are now divisible among the whole children of John Bryden, born or to be born, and the two existing children of Adam Bryden, equally, or share and share alike. Even though the children of John Bryden were only entitled to one half of the lands amongst them, still there would be no reason for giving the whole to the sons so as to exclude the daughters. * The interlocutors of the Court appealed from are erroneous, and must be reversed, in so far as they direct any part of the expenses of the process to be paid out of the heritable bonds referred to.Respondents .—The sound construction of the settlement demands that the succession be divided in a bipartite ratio, and that one just and equal, pro indiviso, half thereof be immediately disponed to the respondents, share and share alike, as heirs portioners.Lord Chancellor .—My Lords, in this case I would move your Lordships that the judgment of the Court below be affirmed; and I do so, as your Lordships will immediately perceive, for this reason,—not because the instrument in question can be thought unambiguous, or

Footnote

* Fairservice v. Whyte , June 17, 1789, Morr. 2317 and 14486; Dollar v. Dollar , Dec. 4, 1722, Morr. 13008; Duncan v. Robertson , Feb. 9, 1813, Fac. Coll.

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This leads us to the second of the points to which your Lordships have been directed. Now, I am of opinion, that you cannot say “their” refers to the children, and thus deals with the children, but that it refers to the parents, and not to the children, and this for these two reasons:—Your Lordships see that it is,

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The third matter, which I stated I should observe upon, is that which appears chiefly to have been pressed on the consideration of the Court below—the fact of Adam's death,—a fact known to the maker of the instrument, for he recited it; and he must have known that Adam had daughters, for he refers to the issue of Adam. But it must be quite evident to your Lordships, from the whole instrument, that it was not a man of business who drew the instrument; nevertheless we must endeavour to understand his view; we must take for granted that he knew something about it; that he had some, however indefinite, meaning attached to it; that he had a consistent meaning, and that his meaning was known to himself. This we are bound to assume, in order to put any construction upon the instrument. The words are,—“and in the event of there being no male child or children in either or each of their families,” that is to say, in the event which has happened with respect to one of the families, inasmuch as Adam has died without male issue, and the event which may or may not have taken place as to John's family,—John being married, but not having any children,—then I provide so and so. But it is a fairly conceivable construction, it implies the grossest inaccuracy in the use of language, because the words that limit are words of contingent and prospective aspect, and they would much more apply to an uncertain than to a certain event, and would apply much more to the future, and what has not happened, than to what has happened, and is finally and irrevocably fixed.

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For these reasons I am inclined to think that the Court below has come to a right conclusion; but I am of opinion, at all events, that the conclusion having been come to, —this construction having been given to the instrument by the Court below, and seeing no grounds to adopt another construction as decidedly preferable to it,—I am not prepared to move your Lordships to reverse the decision. I hope I have made myself understood as not by any means undervaluing the weighty arguments used by the learned counsel. So far from wishing to do so, I cannot but own that their reasoning appeared to my mind most ingenious; and when I say ingenious I do not use the word in the sense in which it very frequently is applied; for it is not to be denied that there are solid objections against the construction in question; there are difficulties, serious difficulties, in this construction; but every other construction is encompassed, in my mind, with at least equal, and—as regards any that I have been able to apply my mind to—with greater difficulties; and it is because this one is pressed with, on the whole, less difficulty than any other, that I would move your Lordships not to alter this decision. My Lords, the Court below were quite aware of these difficulties,—they came to their decision with the greatest doubt,—they felt the full pressure of those difficulties. For this reason I shall not of course recommend that any costs should be given; but I go further, and think, that the costs of appeal, as well as in the Court below, should be paid out of the estate. The judgment in the Court below was, that the expenses should be paid out of the

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The House of Lords pronounced this judgment:—Find, that the interlocutor of the 17th of February 1831, complained of in the said appeal, ought to be varied in so far as it finds the parties respectively entitled to their expenses out of the heritable bonds therein mentioned: And it is therefore declared, That all such expenses, and also the costs of both parties of this appeal, and the proceedings thereon, ought to be paid out of the first and readiest of the rents and profits of the said lands of Westwood, Scaleshill, and Herds Bogside: And it is ordered, That the said interlocutor, with this variation, be and the same is hereby affirmed.Solicitors: A. M. M'Crae— Alexander Dobie, Solicitors.