Patrick Cameron, Esquire, for George Fenton Cameron, his infant son - Lord Advocate (Jeffrey - Jervis v. John Mackie, Esquire, and Others, Trust Disponees and Executors of the late James Dick, Esquire - Dr. Lushingto - H. Robertson [1833] UKHL 7_WS_106

UKHL
Patrick Cameron, Esquire, for George Fenton Cameron, his infant son - Lord Advocate (Jeffrey - Jervis v. John Mackie, Esquire, and Others, Trust Disponees and Executors of the late James Dick, Esquire - Dr. Lushingto - H. Robertson
[1833] UKHL 7_WS_106 · 1833-08-29
Patrick Cameron , Esquire, for George Fenton Cameron , his infant son, Appellant.—Lord Advocate (Jeffrey)—Jervis v. John Mackie , Esquire, and Others, Trust Disponees and Executors of the late James Dick , Esquire, Respondents.—Dr. Lushington—H. Robertson

[ 29th August 1833 .]

Lord Moncreiff .

Subject_ Trust — Revocation — Foreign. —

Held (affirming the judgment of the Court of Session), 1. That a trust disposition of heritable subjects in Scotland of which the granter should die possessed, and referring to trust uses as specified in any will executed or to be executed by him, constitutes, with a will executed in England according to the English forms, an effectual conveyance of the heritage in Scotland for the purposes set forth in the English will.2. That it was no objection to the disposition that the disponees were described as executors under a will which was afterwards revoked, they being otherwise properly designed, and3. That a Scotch conveyance of heritage cannot be revoked by a deed not probative by the law of Scotland, although probative by the place of its execution.

Subject_ Expenses. —

The expenses incurred in trying the validity of a trust conveyance for charitable purposes, and to the exclusion of the heir at law, ordered to be paid out of the trust funds.The late James Dick of Finsbury Square, London, was a native of the north of Scotland; and his niece

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which shall pertain and belong, or be addebted, resting, and owing to me any manner of way at the time of my death, with the whole vouchers, title deeds, securities, and instructions thereof, and whole clauses therein, together with all right, title, and interest which I have to the said subjects, heritable and personal, in Scotland, belonging to me at the time of my death. Moreover, I do hereby bind and oblige me, my heirs and successors, to infeft and seise the said John West, John Mackie, James Alexander Simpson, and John Dick, and the survivors and survivor of them, and the heirs of the survivor, and their or his foresaids, in the whole of said subjects above disponed requiring infeftment; and for that purpose to make, grant, subscribe, and deliver to the said John West, John Mackie, James Alexander Simpson, and John Dick, and the survivors and survivor of them, and the heirs or assignees of the survivor, and their or his foresaids, all writs, deeds, and conveyances containing procuratories of resignation, precepts of sasine, and other usual clauses requisite for fully vesting and establishing the premises in their or his person; with full power to the said John West, John Mackie, James Alexander Simpson, and John Dick, and the survivors and survivor of them, and the heirs of the survivor, and their or his foresaids, to call and pursue for, uplift, receive, assign, convey, sell, and dispose of, discharge and renounce, the whole of said subjects, heritable and personal, hereby disponed and assigned, and generally to do every thing in relation to the premises which I might have done before granting hereof; but always to and for the uses, ends, and purposes, and under the declarations specified and contained in my will in the English form already executed by me, or to be specified and contained in any other will, codicil, or other writing which may yet be executed or signed by me, and to all which express reference is hereby made; reserving always, not only my own life-rent of the subjects, heritable and personal, before disponed and assigned, but also full power and liberty to me 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 deathbed—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: And I consent to the registration hereof in the books of Council and Session, or other Judges books competent, therein to remain for preservation; and thereto constitute Sir John Hay, advocate, my procurator. In witness whereof, these presents, written on stamped paper by Adam Pearson, clerk to Alexander Pearson, W. S., are subscribed by me at London the 14th day of November in the year 1823, before these witnesses: James Stewart Henry, of No. 9, Finsbury Square, in the county of Middlesex, gentleman, and George Newton Browne, of No. 40, Great Coram Street, Russell Square, in the said county of Middlesex, gentleman. (Signed) James Dick .— Jas. S . Henry , witness; G. N. Browne , witness.”
“Know all men by these presents, that I, James Dick, Esq., residing in Finsbury Square, London, for sundry good causes and considerations me hereunto moving, do hereby give, grant, assign, and dispone, from and after my death, to and in favour of John West of Gower Street, Bedford Square, in the county of Middlesex, Esq.; John Mackie the younger, of Fenchurch Street, in the city of London, merchant; James Alexander Simpson of Doughty Street, Mecklenburgh Square, in the said county of Middlesex, gentleman; and John Dick, a captain in the royal navy, executors named and appointed by me, conform to will in the English form already executed by me, and the survivors and survivor of them, and the heirs of the survivor, and their or his disponees and assignees, declaring that a majority of them acting for the time shall constitute a quorum, all and sundry lands and heritages, with all debts heritable and personal, and whole sums of money and effects situated in Scotland,

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The will here referred to was afterwards either cancelled or destroyed; and on the 18th of May 1827, Mr. Dick made another will or testament, by which he revoked all former wills, and gave, devised, and bequeathed

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(Signed) James Dick .”

He came to Scotland in the same year; and when

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He accordingly gave a number of new directions as to the administration of the trust. He did not reserve his life-rent or any power of revocation, nor did he revoke the deed of 1823. The testing clause was in these terms:—
“In witness whereof, these presents, written by Duncan Davidson, advocate in Aberdeen, on this and the five preceding pages of stamped paper, I have subscribed my name, and set my seal, at Aberdeen, the 6th day of July in the year 1827, before witnesses; viz., Alexander Dick, Esq., residing in Edinburgh; John Forbes, son of the said Doctor Patrick Forbes; and the said Duncan Davidson. (Signed) James Dick .— Alex. Dick , witness; John Forbes , witness; Duncan Davidson , witness.”
He delivered this deed to Dr. Glennie.Doubts having occurred, whether, contrary to his intention, Mr. Dick might not, by the execution of the above deed, lose all control over the institution of which he contemplated the establishment, and of the disposal of

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favour, or to the said professors of the faculties of arts and divinity in the said colleges, or in their favour; and in lieu thereof, I direct my executors, in case I shall not by any deed make such a provision as in my will is mentioned for the relief and benefit of the country parochial schoolmasters therein specified, to see that the directions in favour of the said schoolmasters, contained in my will, are duly carried into effect; and for that purpose I authorise and direct my said executors to pay, assign, and make over all the residue of my property, by my will given to the said principals and professors, to such individuals, or to such public or corporate body, as in the judgment of my said executors, or the survivors or survivor of them, or the trustees or trustee for the time being under my said will, shall be most likely to carry my intentions and trusts, which are fully expressed in my will, in favour of the said schoolmasters into effect: And for that purpose I authorise and direct my said executors, and the survivors and survivor of them, or the trustees or trustee for the time being of my said will, to execute and to procure such individuals, or public or corporate body, to join, if necessary, in executing a proper deed of gift or settlement of the said residue of my property, upon the several trusts and subject to the several directions in my said will mentioned in favour of or respecting the country parochial schoolmasters, therein specified, and to do all acts necessary to give full effect to the said trusts and directions, so that the residue of my property may be held by the persons or body to be appointed trustees thereof, upon the same trusts, and for the same purposes, and subject to the same directions in all respects, as if such persons or body had been nominated trustees thereof in my said will, in lieu of the said principals and professors, and the said professors of the faculties of arts and divinity, and in all other respects I confirm my said will. In witness whereof I, the said James Dick, have to this, a codicil to my last will and testament, written and contained in one sheet of paper, set my hand and seal, this 20th November, in the year of our Lord 1827.
“This is a codicil to the will of me, James Dick of Finsbury Square, in the parish of St. Luke, Old Street, in the county of Middlesex, Esq., which will bears date the 18th day of May 1827. Whereas in and by my said will I have directed my executors therein named to pay, assign, and make over all the residue of my property, subject to the bequest therein contained, to the principals and professors for the time being of the King's and Marischal Colleges, Aberdeen, to be by them invested as therein mentioned, and with directions to the said principals and professors to pay the interest and annual produce thereof to the professors of the faculties of arts and divinity in the said Colleges for the time being, upon the trusts therein mentioned, for the benefit of the country parochial schoolmasters in the three counties of Aberdeen, Banff, and Moray, excluding the royal burghs: And whereas I am apprehensive that if the residue of my said property shall be paid to the said principals and professors, my intentions in favour of the parochial schoolmasters aforesaid may be partially frustrated; I do therefore, by this codicil to my said will, revoke the said directions contained in my will to my executors, to pay the residue of my property to the said principals and professors, and I revoke and make void all the bequests contained in my said will to them, or in their

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(Signed) James Dick .”

He was in the course of getting certain other testamentary deeds prepared in May 1828, when he died on the 24th of that month in London. In October thereafter, the appellant, his grand nephew, was served heir at law to him; and being a pupil, his father as his administrator in law raised before the Court of Session an action of reduction, concluding to have the disposition of November 1823, the will or testament of May, and the codicil of November 1827, set aside, in respect that the disposition did not contain the proper disponing words to import a valid conveyance of real property, per verba de præsenti, and at all events was revoked by the will and testament executed upon the 18th of May 1827, or at least by the deed executed at Aberdeen; that the will and testament executed upon the 18th of May 1827 was destitute of the solemnities and requisites necessary for the conveyance of heritable property and securities in Scotland, and did not apply to any heritable property in Scotland; that, supposing the disposition to stand unrevoked, it was nevertheless void, as it had been granted to persons as executors appointed by a previous existing will, but which had been revoked by the will of 18th May 1827, so that the

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In defence the trustees pleaded, that the disposition contained proper disponing words, importing a valid conveyance of real property, and was executed with all the solemnities required by law; that it was not revoked by the will, which only revoked all wills previously executed and had no reference to the disposition, which was not a will, but a de præsenti conveyance; that although the will was ineffectual as a conveyance of heritable property in Scotland, yet it was valid as setting forth the testator's directions as to the disposal of his heritable property in Scotland previously conveyed by the disposition, and those directions must be held to be a part of that deed, in the same manner as if they had been engrossed in it; that the words in the disposition which designed the disponees as executors named in the first will were merely descriptive, and that their identity with the executors nominated in the will

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The Lord Ordinary appointed the question to be argued in cases, on advising which he pronounced this interlocutor (11th January 1831):—afterwards execute in the application of the said obligations of trust to the purposes actually specified and contained in the said last will and testament of the 18th May 1827, and the codicil of the 20th November 1827, is a question which must be determined exclusively by the law of Scotland: Finds it fully settled as a matter of the law of Scotland that an heritable estate may be effectually conveyed by a trust deed in the form of the trust deed executed by James Dick, and that the obligations of trust provisionally created by reference to any will to be afterwards executed may be effectually perfected and defined by a testamentary deed or will executed according to the law of the place where the testator is domiciled, though not bearing the forms of the law of Scotland: Finds that in this case the provisions of trust in the trust deed are so laid down and expressed as to apply with effect to the purposes specified and contained in the said last will and testament, and the said codicil, and that there is no incongruity which can prevent such application: Therefore sustains the defences, and assoilzies the defenders, and decerns, but finds no expenses due. of the same purposes to the Scotch heritable estate, because that would plainly be to judge of the effect, not of the English deed, but of the Scotch deed. The questions arising under the law of Scotland from the facts in the record are so clearly treated in the cases, and the argument of the defenders appears to the Lord Ordinary to be so conclusively supported by the authorities referred to, that he thinks it unnecessary to express the grounds of his opinion on the several points discussed more particularly than he has done in the above interlocutor. The way in which a title is to be completed, and the testator's design carried into effect, is a matter in which the pursuer has no interest, if he cannot reduce the settlement.”
“The Lord Ordinary, having resumed consideration of the closed record, with the mutual cases now lodged, Finds that the deed of trust executed by James Dick, deceased, according to the forms of the law of Scotland, of date the 14th November 1823, was not revoked by the last will and testament, also executed by the said James Dick, of date the 18th May 1827, or by any other deed, instrument, or act: Finds that the said deed of trust is subsisting, and effectual to convey to the persons therein named, and to the survivors or survivor of them, the whole heritable property of the deceased, situated in Scotland, in which he was vested at the time of his death, subject to the effect of the obligations of trust therein expressed: Finds that, it being admitted that the said last will and testament of date the 18th May 1827, and the codicil of 20th November 1827, executed according to the forms of the law of England, where the testator had his domicile, are in all respects valid and effectual to their purposes under that law, and there being no ground for alleging that there is any technical ambiguity in the terms or clauses thereof, the question as to the effect of the obligations of trust, expressed in the said trust deed, in relation to the testator's property in Scotland, by reference to the purposes specified and contained in a last will previously executed, or to be specified and contained in any will, codicil, or other writing which the testator might

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Note .—The cases of election quoted by the pursuer as being held to depend on the law of England are entirely different from this case. In them the question depended wholly on an English deed, but here the operative deed is a Scotch deed; the English deed is but incidental to it. And though an English lawyer, looking at that deed alone, might very possibly say that the purposes expressed do not go beyond the property carried by it, he could give no legal opinion as to the effect of the trust deed, to extend the operation

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Against this judgment the appellant reclaimed to the First Division of the Court, who (19th May 1831) adhered, “with this explanation and alteration, that the expenses incurred by the pursuer in this action shall be paid by the defenders out of the trust fund.” *Mr. Cameron appealed.Appellant .—1. The first point is, whether a Scotch deed conveying heritage can be revoked by an English deed, or a deed not probative by the law of Scotland. It certainly must appear rather singular, if the law of Scotland were to hold, that an imperfect trust conveyance may be filled up by a deed in the English form, and not probative according to the law of Scotland; and yet that a conveyance of property cannot be revoked in the same manner. But the law appears to be

Footnote

* 9 S. D. B., p. 601.

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Footnote

* Simpson v. Barclay , December 11, 1751, Elchies voce Testament, Mor. 15585; Lang v. Whitelaw , Shaw, Appeal Cases, vol. ii. p. 13, note.† July 5, 1827, Shaw & Dunlop, vol. v. p. 897, new ed. 832.‡ Nov. 23, 1827, Shaw & Dunlop, vol. vi. p. 113, ante v. 61.

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2. But, supposing the disposition of 1823 not to have been revoked, it is void in respect of having been granted to the disponees therein named, and the survivor of them, as the executors of a will previously executed, and as the office so conferred, and in contemplation of which the disposition was granted, never came to exist in their persons,

Footnote

* Muir v. Muir , June 1, 1813, Fac. Coll.† Muller Promptuarium Juris, vol. vii. p. 426; Voet, lib. 27.tit. 3. sec. 5; Vinnius, Inst. lib. ii. tit. 18. sec. 6; Lord Meadowbank's opinion in Howden v. Howden , July 8, 1815, Fac. Coll.

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3. It was incompetent for Mr. Dick, by a deed executed in the form of an English will, and improbative according to the law of Scotland, to fill up and declare the

Footnote

* Willoch v. Auchterlony , Dec. 16, 1769, M. 5539.

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Footnote

* Robertson, Feb. 16, 1816, Fac. Coll.; Trotter v. Trotter , Dec. 5, 1826, affirmed on appeal; 5 S. D., p. 78, new ed. p. 72, June 10, 1829, ante iii. 407.† Henderson v. Wilson , Jan. 31, 1797, Mor. 15444.

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Respondents .—1. The question whether a Scotch deed conveying heritage in Scotland has or has not been revoked by an instrument sufficient to produce that effect, must be determined by the rules of the Scotch law. For it is established law, that in regard to the form of conveyances of real property, as well as of revocations of such conveyances, the lex rei sitæ must govern.

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Footnote

* Simpson v. Barclay , 10th January 1752, Elchies voce Testament, No. 12.† Dundas v. Dundas , 25th February 1783, Mor. p. 15585.‡ May 21, 1783.§ Henderson v. Wilson , 31st January 1797, Mor. p. 15444.|| May 29, 1802, Morison, App., Tailzie, No. 3.

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2. The appellant has argued that the deed of 1823 is void, in respect the trustees are described as the executors appointed by the previous English will, which will was afterwards revoked; that, the office of executor under that will having thus never come into operation, the description under which they were appointed trustees was incorrect; and that the executors appointed by the “last will and codicil, are not the same persons with the trustees nominated by the deed of 1823. It is true that the trustees are described as executors, and the description

Footnote

* Crawford v. Coutts , 3d Feb. 1801, Mor. No. 3, Apx. Death-bed, remitted 14th March 1806, 12 Fac. Col. note.† Batlay v. Small , 2d February 1815, Fac. Col.‡ Rowan v. Alexander , 22d November 1775, Mor. 11371; Donaldson v. Mackenzie , 20th July 1776; Roxburgh, 13th December 1816, affirmed 25th May 1820, Bligh's Reports, vol. ii. p. 619; Toller's Law of Executors, p. 15, 6th edit.

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3. It is not seriously disputed, that by the law of Scotland

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Footnote

* Willoch v. Auchterlony , 14th December 1769, Mor. p. 5539.

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Lord Chancellor .—My Lords, this was an appeal from the Court of Session, in which Patrick Cameron, for his infant son, George Fenton Cameron, is the appellant, and John Mackie and others, trustees under the deed and will of the late James Dick, Esq., of Finsbury Square, London, are the respondents. James Dick, by a trust deed executed in England on the 14th of November 1823, but in the Scotch form, in the Scotch language, and upon Scotch property, and the provisions of which were entirely Scotch, vested his estates in trustees, according to the Scotch law, but always to and for the uses, ends, and purposes, and under the declarations, specified and contained in his will in the English form, already executed by him, or to be specified and contained in any other will, codicil, or other writing which might yet be executed or signed by him, and to all which express reference was thereby made. He had at that time, as he states, executed a will in England, but that will was subsequently cancelled, and no evidence or information whatever remains of the contents of it, supposing we were at liberty to go into it. But he afterwards made and published his will in England, according to the English form, and attested in such manner as to pass English real estates, on the 18th of May 1827; and by that will he gave, devised, and bequeathed all and every

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My Lords,this case was very fully argued upon two occasions before your Lordships, and on one of those occasions your Lordships had the benefit of the assistance of two of the learned Judges of this country, for the purpose of ascertaining, if need be, the effect of this English will upon English property, supposing English property to have been the matter in question, and supposing one of the points raised in the Court below to be, whether or not the English law would affect this question of the execution as to the Scotch property? I was very clearly of opinion, and in that I had the concurrence of those two learned Judges entirely, that in this case the English law can have no bearing whatever upon the question,—that it is a question touching Scotch real estate alone; that the Scotch law alone must regulate the disposition of that real estate in Scotland; and that it does not signify at all to the decision of the present question, to inquire what would be the effect of the English will upon an

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My Lords,as I entertained some doubt of this originally, and as I felt a very great and natural reluctance to affirm this decision, I thought it fit to postpone this case, for the purpose of further consideration, before finally disposing of the question,—being willing, if I could see any means of reconciling the contrary judgments in the Courts of Scotland, and the facts of the case, to take advantage of that circumstance. This reluctance, I have no doubt, was amply shared by the, Court below; and it is grounded upon this, that there is nothing peculiarly judicious in the disposition in question, of this property. The burghs of Scotland are exempted from the bounty

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The difference between the law of Scotland and the law of England, as to the execution of powers, is very great. Not only the principles whereupon that branch of the law rests in the two countries are not the same, but the principles on which the Scotch law appears to rest may be said, in some respects, to be opposed to those which are the basis of the English law in this branch. By our law, if there is a power, and a question arises whether an instrument has executed that power, it is necessary that the party maintaining the affirmative should make it appear that the intent of the party making the deed, will, or other instrument, which is alleged to be an execution, was to execute the power. In the Scotch law the reverse is the case; and unless it shall be shown that it was not his intention to execute the power, it shall be held a good execution. Here the burden of proof is thrown upon him who would support the execution,—there, the proof is rather thrown upon him who would deny the execution. In either case, I need hardly add, that the evidence is to be collected from within the instruments themselves; but the proof from the internal evidence of those instruments is thrown upon different parties in the two countries. Thus, although the rule is not with us that it is necessary that the instrument alleged to prove the execution should refer directly and explicitly to the instrument creating the power, nor that it should refer expressly to

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Now, my Lords, a very important matter of fact has been left undecided, and apparently uninquired into in the Court below, namely, Whether or not there was in fact any other real estate than the Scotch estate belonging to the testator, either at the date of the trust instrument, or at the date of the will? One of the learned

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The case of Willoch v. Auchterlony was very much relied on by the respondents; and it was principally with a view to that case that the second argument was originally ordered, though it afterwards took a wider scope. Two points were to be ascertained; first, the authority due to that case, and whether it had ever been shaken; and, secondly, its application to the present question.

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My Lords,upon these grounds, I have no hesitation in recommending to your Lordships, that the interlocutors complained of should be affirmed; but for reasons which are obvious without being referred to, that no costs of the appeal should be paid, in this case, by the party against whom your Lordships decide; on the contrary, that your Lordships should affirm, among other parts of the judgment below, that part of the interlocutor of the Inner House by which they varied the Lord Ordinary's interlocutor, and threw upon the fund the costs of the proceedings up to that time; to which I shall beg leave now to add this further proposition,—that all the costs of the appeal—all the costs both here and below, as between solicitor and client, meaning, in the most ample form, and to the greatest extent in which those costs can, quasi costs, be given, shall be paid out of this fund.The House of Lords ordered and adjudged, That the interlocutors, so far as complained of, be affirmed: And it

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Solicitors: A. and R. Mundell— Spottiswoode and Robertson, Solicitors.