Hugh Allan - Sir Charles Wetherel - Pyper v. The Trustees of Robert Glasgow, Esquire, of Montgreenan - Lord Advocate (Murray - Dr. Lushington [1835] UKHL 2_SM_333

UKHL
Hugh Allan - Sir Charles Wetherel - Pyper v. The Trustees of Robert Glasgow, Esquire, of Montgreenan - Lord Advocate (Murray - Dr. Lushington
[1835] UKHL 2_SM_333
A party, after having entailed his lands, conveyed to trustees, mortis causa, all lands not entailed, and all future acquisitions, and his personal estate, for the purpose of applying the produce or proceeds to the purchase of lands to be entailed in the same way as he had entailed his other lands, but he gave no express power to sell, and did not specially include a property acquired prior to the date of his entail, and which it was admitted he did not intend to entail. Held (reversing the judgment of the Court of Session) in a question between the trustees, concluding for power to sell that property and apply the price in buying and entailing lands, and the heir at law, that they were not entitled to a decree to that effect.Lord Corehouse.The late Robert Glasgow, Esq., who had realized a considerable fortune in the West Indies, returned to Scotland several years ago, and purchased the estate of Montgreenan. To this estate he continued from time to time to make additions by further purchases of land lying in its neighbourhood.In 1815 he bought a small property in the neighbourhood of Ayr, called Seafield, consisting of a villa and offices, and some land, at the price of 4,000 l ., in satisfaction

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Posterior to 1818 he made further acquisitions of landed property; and on the 23d June 1821 he executed a supplementary deed of entail, including all his additional purchases (but still excepting the villa of Seafield), in favour of the same series of heirs. In regard to this property of Seafield, it was admitted that Mr. Glasgow had no intention whatever of entailing it.Of the same date with the supplementary deed of entail, Mr. Glasgow executed a trust disposition and deed of settlement, which proceeds on the recital that he had settled his lands and estates of Montgreenan and others under the entails, and that it was his intention to enlarge his entailed estate “by further purchases, and in particular, that whatever moneys, whether heritably secured or otherwise, or other personal estate, may at my death belong to me in Scotland (excepting as after mentioned), shall be appropriated for the purchase of lands or other hereditaments lying as near to my said lands of Montgreenan as can be had, and that the said lands and additional purchases shall be settled upon the same series of heirs on which I have already settled my said lands and estates of Montgreenan and others, and under the same species of entail.”He therefore assigned, disponed, and made over to trustees, for the “ends, uses, and purposes, and with and under the conditions and reservations herein-after

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The purposes of the trust are declared to be, 1st, That the trustees “shall, out of the produce of my said means and estate, pay all the just and lawful debts which shall be due and owing by me at the time of my death,” together with her funeral expenses, and sundry legacies, annuities, and donations. 2dly, That the trustees may, as soon after his death as conveniently

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The fourth purpose of the trust was “To the end and intent that my said trustees or trustee shall as soon as they shall have it in their power, from the state of the trust funds, and as they shall think proper, appropriate and apply such produce or proceeds of my real and personal estate hereby conveyed to the purchasing of lands or other heritages in Scotland lying contiguous or as near as may be to my said lands and estates of Montgreenan in Scotland, as such purchases can be met with and most conveniently and advantageously made, and take the rights of the lands and other subjects

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In the fifth place, “To the end that my said trustees or trustee shall immediately upon making the said purchases, and having their titles thereto completed, or as soon thereafter as can be, make and execute a deed of entail of the said lands and others so to be purchased by them, settling and disponing the same to and in favour of the said Robert Robertson, Esq., whom failing, to the other heirs of entail and substitutes named and appointed by me in the said deeds of entail executed by me of my said lands and estate of Montgreenan and others in Scotland, of the 10th day of February 1818, and of the date hereof, and which are here specially referred to.”Some farther directions are then given as to the manner of completing the entail, after which the trust deed proceeded as follows:his expense, upon delivery of the said accounts, titles, and documents, to grant to the said trustees a full legal discharge of their actings and intromissions.”
“6thly, After the residue or free reversion of my said estate shall be so invested in the purchase of lands and heritages, and the same settled and secured in manner foresaid, I appoint my said trustees to denude of this trust, and to pay over any balance in their hands, and deliver over to the said heir of entail in possession for the time of the said estate of Montgreenan and others in Scotland the whole title-deeds of the lands so purchased by them, together with vouchers and discharges of the debts and other obligations they may have paid in the execution of the trust, and all other writings and papers connected with the same; my said heir of entail being bound at

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Various other clauses, including a procuratory of resignation and a precept of sasine, were then introduced, but there was no express power to sell granted.Mr. Glasgow subsequently entered into a transaction for the sale of Seafield, but before it was completed he was placed under curatory, and died in 1827.The trustees under his trust deed, on the assumption that they had power to sell Seafield, made arrangements to that effect with a purchaser; but a doubt having been started as to their power, they brought an action of declarator before the Court of Session against the heirs of entail, and afterwards a supplementary action against the appellant Allan and others, the heirs of law of Mr. Glasgow, concluding that “it ought and should be found, by decreet of our said Lords, that our said lovites as trustees foresaid, after having made up sufficient legal titles in their persons to the said property of Seafield, in the due execution of the trust committed to them by the said deceased Robert Glasgow, and in furtherance of his declared intention to dispose of the said property (Seafield), are entitled to sell and dispose of the same by public roup, at such a reasonable price as can be obtained, and to grant a valid and unexceptionable title to the purchaser, and, after having completed the said sale and received payment of the price, to appropriate and apply the same to the purchasing of lands or other heritages in Scotland lying contiguous or as near as may be to the said lands and estate of Montgreenan, as such purchases can be met with and most conveniently and advantageously

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In defence he pleaded, that, in order to entitle trustees to sell or entail lands, especially to the prejudice of the heir at law, it is not enough that the truster intimate or even express an intention to that effect; there must also be formal clauses in the deed, giving the trustees power to carry the intention into effect. But in the present case, the property of Seafield not having been conveyed specially to the trustees, and there being no evidence of an intention to entail the lands of Seafield, or of an intention that the trustees should have a power

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On the other hand, the trustees maintained that as the present question arose out of the construction of mortis causa deeds of settlement, it must be determined according to what may fairly be presumed to have been his intention; and as the terms of the various deeds demonstrate his intention that, after paying his debts and legacies, his whole property, of every description, land as well as money (other than the lands which he had himself entailed), should be realized and employed in the purchase of land contiguous to Montgreenan, and to be added to that entailed estate, decree should be pronounced in terms of the libel.The Lord Ordinary ordered cases, which he reported to the Court, who, on 7th March 1832 1 , pronounced this interlocutor:—and authority to sell and dispose of the lands of Seafield within mentioned, for such price as can be obtained for the same, by public sale. Find and declare that the said trustees have full power to grant a valid and unexceptionable title to the purchaser of the said lands, and to apply the free proceeds of the said lands in purchasing lands to be settled and entailed in terms of the directions in the said trust disposition and deed of settlement. Farther find the trust funds in the hands of the said trustees chargeable with the whole expense of the process, and authorize the trustees to take credit for the same accordingly in accounting for their intromissions under the trust, and decern. Find the trustees liable as such to Hugh Allan, called by supplementary summons as a defender, in the full expenses incurred by him in this litigation; and remit the account thereof to the auditor to tax the same as between client and agent, and to report.”
“The Lords having advised the cases, and heard counsel for the parties, find and declare, that under the directions contained in the trust disposition and deed of settlement executed by the deceased Robert Glasgow, Esq. the trustees have full power

Footnote

1 10 S., D., & B., 438.

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Allan appealed against this interlocutor, except in so far as it found him entitled to expenses.Appellant .—Viewing this merely as a question of intention, the trust deed affords no evidence of Mr. Glasgow's intention either to entail Seafield, or to convey it to the trustees in order that they might sell it, and with its price purchase lands to be entailed. The respondents admit that Mr. Glasgow never intended to entail Seafield. On the contrary, they themselves stated in their summons, that in 1824 he had concluded a bargain for the sale of that property.In the narrative of the trust deed, when giving a general description of the trust estate, and of that part of it which he meant the trustees to apply to the purchase

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It is therefore demonstrated by the trust deed itself, that, so far as regarded landed property, it was future acquisitions alone,—that is, acquisitions posterior to the year 1821, (when the supplementary entail was executed,) that Mr. Glasgow contemplated as additions to the entailed estate of Montgreenan, and that the proper subject of the trust and relative entail was the “monies” which the trustees might realize from the heritable and personal debts due to the truster.But even if Seafield were included under the general description contained in the dispositive clause of the trust deed, this would not entitle the trustees to decree in terms of the summons. It is further incumbent on them to show that the deed contains an express power, or a positive injunction, to sell this property, and appropriate its price to the purchase of lands to be entailed. This is not like the case of a trust for the payment of debts, where, without a power of sale, the debts could not be paid; and where, ex equitate, the Court might interpose to supply an obvious defect. The object here is gratuitously to defeat the rights of the heir-at-law; and, on an allegation of a defect of powers for that purpose, to obtain the interposition of the Court in implement of the alleged intention so to disappoint the heir.But it has been said that the appellant has on the above supposition no interest to maintain this plea; for if

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Had the defect occurred in Mr. Glasgow's deed of entail itself, or had any particular portion of what now forms the entailed estate of Montgreenan been even accidentally omitted in the entail, the Court could not have interposed, however clear the entailer's intention, and however anxious his apparent wish might have been to include that portion under the entail. In like manner, however clear and unequivocal the intention of the entailer might have been to prohibit sales, alterations in the order of succession, and the contraction of debt, yet, if he had omitted, or had not duly fenced any one of these prohibitions, the entail would have been to that extent inoperative. 1The real, and in fact the avowed object of the trustees in the present action, is, by means of a decree in terms of the libel, to create a limitation, and to extend fetters by

Footnote

1 Ersk. b. in. tit. 8. seet. 29; Dow's Reports, vol. ii. p. 210.

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It is no answer to say, as Lord Balgray did in delivering his opinion in the Court of Session, that the trust deed contains words tantamount to a power of sale. If the deed contain such words, the action was useless and unnecessary; for the very ground of it was, that the deed contained no power of sale; and the reason assigned for that was, that Mr. Glasgow never contemplated a special conveyance of Seafield to his trustees; and that with respect to all the rest of his real and personal estate, conveyed by that deed, the powers of the trustees to realize and apply the proceeds were ample. As to Seafield, therefore, by the respondents' own admission, the matter was left in dubio; and all the judges concurred in holding that where any doubt exists as to the intention of the truster, or as to the powers which he confers, the heir-at-law, in competition with a stranger, is entitled to the benefit of that doubt. In the present case the power of sale was confessedly not given by the truster, but was asked from the Court of Session, in the exercise of their equitable powers, to enable the trustees to exclude the heir-at-law.The respondents have cited certain cases, but which do not touch the principle contended for by the appellant. The first is that of Skene v. Skene 1 , which related

Footnote

1 31 July, 1755, Mor. p. 1135.

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In another case referred to that of Robson v. Robson 1 a father disponed to his second son the whole heritable and moveable property which might belong to him at the time of his death, and afterwards bought an acre of land, and took the disposition, in the usual terms, to himself and his heirs and assignees. After his death the eldest son, as heir in heritage, claimed this acre. The second son also claimed it, under the general disposition in his favour of all the heritage which might belong to his father at the time of his death: and the court preferred him, on the ground that he “had a right, by his “father's settlement, to the acre in question.” But the main question here is, not whether or not the lands of Seafield are included under the general description in the trust deed, but whether there are termini habiles under

Footnote

1 18 Feb. 1791, Mor. p. 1495.

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Respondents .—The general view which may safely be taken of any such case as the present is this:—The subjects have been conveyed by the truster for certain purposes; these purposes must necessarily ascertain and regulate the powers of the trustees; if powers are required, they must be derived from and arise out of the purposes stated by the truster as the object of the conveyance.The trustees are vested in the right of the truster by his own act:—The question is, To what effect are they so vested? Now the intention of the truster must decide this point. The title is given to the trustees. No feudal right is left, which the heir can take up. Hence the lands are conveyed to the trustees. Then the only question is,—the subjects being so conveyed away from the heir, and the power to do so being thus exercised, the subjects being thus vested in the trustees, and vested for purposes in which the heir has no interest, is the power of dealing with these subjects in such a way as to fulfil the purposes of the trust deed not to belong to the trustees as a necessary result of the conveyance? And further, can it be said that the heir has any interest to interfere in such a case, when a conveyance has been effectually made, which leaves in him no right or title whatever.

Footnote

1 13 May, 1829, 7 S., P., & B., 594.

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In the trust deed there is a clear and explicit general conveyance of all lands and heritable subjects, with the exception of particular lands previously entailed. The property of Seafield belonged to the truster at the time of the trust deed, and the conveyance is made expressly of all lands which might belong to him at the time of his death.The effect of such a general trust deed is to give the trustees right to make up titles in the ordinary way to all the heritable property, by an adjudication in implement.The heir-at-law has no right to object to such a course, and cannot prevent the trustees completing their title to particular properties, in pursuance and in virtue of the general conveyance.Such being the case, it is important to consider on what ground the plea of the heir can be founded.The only consistent foundation of it must be, that though the lands have been conveyed to the trustees, yet the trust cannot be explicated, because certain powers requisite for the fulfilment of the purposes have not been expressed, and hence that the property ought to fall to the heir. This point is a very different question from the inquiry, whether the lands are included in an effectual conveyance to trustees? Upon that point the intention of the truster is of no moment. If the words employed are not in law sufficient to carry the lands, the heir-at-law of necessity will take, however clear may be the intention of the truster; for, in such a case, intention cannot aid the deed, if it is not a sufficient conveyance.But in the other question, (viz. whether the trustees necessarily have not all the powers required for the execution

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In deciding such a question the Court has not to supply any defect in the title of and conveyance to the trustees; it has only fairly to construe a deed which excludes any claim by the heir-at-law; and the principle of construction in such a case is so to construe the deed as to effectuate the intention of the granter.But when the conveyance to the trustees is complete, they are in the full right of the granter of the trust deed; they have all the powers and all the rights which he possessed, in consequence of his conveyance to them, in so far as these powers are necessary for the object of that conveyance.The trustees are also necessarily under certain obligations. The duty of fulfilling the purposes is one of the first objects of the trust; and the duty therefore arising out of the conveyance to them must import the possession of all the powers of the truster, in so far as necessary to fulfil the duties so imposed.From the terms of the trust deed it will be observed that the debts of the truster are laid equally upon all the trust estate; and it is clear, therefore, that the heir of entail, in a competition with the trustees, could not be subjected in any debts until the whole trust funds should be exhausted.But a trust for the payment of debts of itself necessarily implies a power to sell; for one of the objects of the trust is to prevent the more expensive proceedings of creditors who can force a sale.The second purpose of the trust deed enables the trustees to make up, as trustees, such titles as may be necessary to the real estate.

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This of itself gives the power to sell, and shows that it was not intended to limit their title, but, on the contrary, to adapt the title to the execution of the purposes of the trust.The third purpose directs them to make up a state of the trust estate under their management at a specified period, so as to show the clear amount of such trust estate after deduction of debts. This is not the value of the yearly produce, but the total value of the whole property conveyed to the trustees, which proves that the whole property was to be equally dealt with as trust estate.Again, the close of the third purpose says, that that residue is to be disposed of in the manner after mentioned. That residue was the whole trust estate, deducting debts; and hence the lands in question were conveyed for the purpose of being disposed of as the trust deed directs under the fourth purpose.This third purpose also gives the heir of the estate of Montgreenan an unquestionable right to the annual produce of the lands in question, and the right is given to the heir of entail in possession for the time.The fourth purpose directs that the trustees shall apply the produce or proceeds of the real and personal estate hereby conveyed in purchasing lands contiguous to Montgreenan.This is applicable to the whole real estate conveyed, and the words “apply the produce or proceeds of real estate” in purchasing lands clearly import the price of the real estate. The trustees can only get the price of the real estate, in order to purchase other lands, by selling the real estate. And hence, where lands and personal estate are conveyed to trustees, and they are

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These principles are supported by various decisions in the Courts of Scotland. 1

Lord Brougham .—My Lords, the question in this case was very fully argued by the learned counsel at the bar, both on the part of the appellant and on the part of the respondents. I thought at the time that it would not be possible to support the decision, the effect of which is to clothe the heir of entail with authority to sell a landed estate, which power is not conveyed by the instrument; and that there was the further and insuperable objection, that giving the power of entailing by implication an unentailed estate,—an estate held in fee-simple,—is contrary to every principle of the law of Scotland. My Lords, the question then is, does the deed afford the power of sale? In the first place, if it affords the power of sale, then follows the power of entailing, because the trustees are directed to lay out the proceeds and produce in their hands in land, and to entail that land contiguous to the Montgreenan estate. The only question is the first, for the other follows,—Is there a power of sale given? The law of Scotland is the same with the law of England. The heir-at-law cannot be excluded or displaced by implication;

Footnote

1 Drummond v. Drummond , 17 July 1782 (2313); Skene v. Skene , 31 July 1725 (11, 354); Robson v. Robson , 18 Feb. 1794 (14, 958); Moore's Trustees v. Wilson , 25 June 1814 (Fac. Coll.); Erskine's Trustees v. Wemyss , 13 May, 1829; 7 S., D., & B., 594.

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The House of Lords ordered and adjudged, That the interlocutors complained of in the said appeal be, and the same are hereby reversed.Solicitors: John Butt — Richardson and Connell. Solicitors.