Graham v. Stewart et al. [1855] UKHL 2_Macqueen_295

UKHL

Graham v. Stewart et al.

[1855] UKHL 2_Macqueen_295 · 1838-05-04

Reports of Cases Argued and Determined in The House of Lords.

No. 22

Graham, Appellant v. Stewart et al., Respondents

1855 . May 25th , and June 5th , 7th , and 14th .

Subject_ Construction. —

An entail made in 1726 was supposed to be binding and indefeasible. In 1821, the heir in possession directed his testamentary trustees to convey to those succeeding him in the estate certain fee-simple lands, and the conveyance was to be expressly “under all the conditions, provisions, and clauses prohibitory, irritant, and resolutive of the said entail, so far as the same might be applicable, and so as to form a valid and effectual entail according to the law of Scotland.” The testator died in 1843. In 1849, the House of Lords decided that the said entail was defective. Held , that the conveyance to be executed by the trustees should be so framed as to “make a valid and effectual entail;” and, therefore, was not to follow the original entail where it had been found to be defective.

Dissent by Lord St. Leonards.

The Court of Session had decided in favour of the Respondent. Hence this Appeal.

The Solicitor General (a) and Mr. Rolt for the Appellant.

The Lord Advocate (b) and Mr. Roundell Palmer for the Respondents.

Lord Chancellor's opinion.

The Lord Chancellor (c) :

My Lords,

this is an appeal against the interlocutor of the Lords of Session, in an action raised by Robert Graham of Redgorton, against Robert Stewart and Sir Patrick Murray Threpland, who are trustees of the

Footnote

( a ) Sir R. Bethell.

( b ) Mr. Moncreiff.

( c ) Lord Cranworth.

Page: 296 ↓

The question arises upon the construction which is to be put upon the first deed of Lord Lynedoch, which is in the nature of an entail, executed by him, directing the disposition of his lands after his death. It is a trust disposition and settlement made by Lord Lynedoch, dated 20th of June 1821, and codicils dated 7th March and 4th May 1838, all registered in the books of Council and Session on the 30th of December 1843.

The facts of the case are shortly these. In the year 1726, the then Mr. Graham was in possession of the property and estates of Balgowan, and executed certain deeds whereby he entailed those estates, as he supposed, with all necessary fetters in strict settlement. Under that settlement, after different heirs, whom it is not necessary to enumerate, the late Lord Lynedoch became entitled, as heir of entail, a good many years ago, somewhere towards the latter part of the last century, in 1770 or thereabouts. At different times, certain of the lands that had been settled were sold, and others substituted in their place. That was done by virtue of three several Acts of Parliament passed in the years 1787, 1805, and 1811.

After Lord Lynedoch's death, the question arose as to the validity of the entail. And, not to trouble your Lordships by recapitulating in detail the proceedings which took place, it was established that there was no fetter restraining aiienation and that consequently the entail was invalid (a) .

Footnote

( a ) Murray v. Graham , 6 Bell, App. Ca. 441.

Page: 297 ↓

Lord Lynedoch, by his trust disposition, made in the year 1821, settled his estates, and directed them to be disposed of in a variety of ways, both the personal and the real estates;—in the first place, for the payment of his death-bed and funeral expenses; secondly, for the payment of his just debts; thirdly, to pay legacies; and fourthly, and this gave rise to the present question, that after fully accomplishing the purposes aforesaid, “if any of my lands and heritages before disponed shall remain unsold, my trustees shall, in due form of law, dispone and convey the same to the heirs of entail called after me in and by a certain deed of entail executed by Thomas Graham, sometime of Balgowan, and John Graham, his son, dated on or about the 7th day of February and the 9th day of June in the year 1726, and recorded in the register of entails on or about the 30th of December in the same year, under all the conditions, provisions, and clauses prohibitory, irritant, and resolutive in the said deed of entail contained, so far as the same may be applicable, and so as to form a valid and effectual entail according to the law of Scotland.”

Now, his Lordship having died seised of a considerable amount of real estate and of personal estate, which became vested in the same person, the question comes

Footnote

( a ) 11 & 12 Vict. c. 36.

Page: 298 ↓

The present Pursuer, Mr. Graham, contends that it having been decided that the deed of 1726 did not create an effectual entail, this direction was substantially a direction to settle the lands of which he was seised in fee-simple, or which might be purchased with the residuary personal estate, in the same way as the deed of 1726 had settled those estates. And inasmuch as that settlement gave to him in effect an absolute estate in fee-simple, he is now entitled in fee-simple to the lands of which Lord Lynedoch was seised in fee-simple, or which were purchased by the residuary personal estate. To establish these positions is the object of the present action.

My Lords,

the Court of Session has held that that is not the true construction to be put upon this trust disposition of 1821; for although the direction was that the lands of which he was seised in fee-simple were to go to the heir of entail “under all the conditions, provisions, and clauses, contained in the former deed,” yet that there were superadded the words “ and so as to form a valid and effectual entail according to the law of Scotland .” If, therefore, looking only to the “conditions, provisions, and clauses contained in the deed of 1726,” there be any defect (as undoubtedly there is), that deed is not a valid and effectual entail according to the law of Scotland. The learned Judges were therefore of opinion that the direction imported that such restrictions must be added as are necessary to form a valid and effectual entail That was the opinion of the Judges of the Inner House, with one exception, the Court determining that, according to the true construction of that deed of 1821, the settlement to be executed was to be made so

Page: 299 ↓

This decision now comes to be reviewed by your Lordships; and I must own that, in my opinion, the conclusion at which the Court of Session arrived was a perfectly correct one. That opinion rests upon grounds extremely simple, and which may be very shortly stated.

I take it to be a canon of construction, that you are, in the first place, to strike out no words that are sensible, and that you cannot see have been introduced by accident or inadvertence; and you are to give to all words their natural meaning, unless there be something in the context, or in certain cases in external circumstances, to show that the words are not so to be understood.

Now, the direction is that these fee-simple lands are to be settled “under all the conditions, provisions, and clauses prohibitory, irritant, and resolutive in the former deed of entail.” If that had been all, no doubt, inasmuch as that former deed of entail had the omission of an irritant clause, whereas it was necessary that there should be an irritant clause in order to make the deed valid, the contention of the Pursuer would have been right, and he would have been entitled to the fee-simple; but the testator having directed that the deed was to be framed with “all the conditions, provisions, and clauses in the former deed,” then goes on, “and so as to form a valid and effectual entail according to the law of Scotland.” The Court of Session held that you have no more right to strike out those words than to strike out the former words; that the two are perfectly consistent; that you may make the settlement subject to “all the conditions, provisions, and clauses prohibitory, irritant, and resolutive, contained in the deed of entail of 1726, and you may do that,

Page: 300 ↓

In the course of the argument, it was strongly pressed that this could not have been the meaning of Lord Lynedoch, because Lord Lynedoch certainly supposed that the deed of 1726 created a valid entail, and that, therefore, he, supposing that that was a valid entail, must be taken to have understood when he directed these lands to be settled according to that deed, “and so as to form a valid and effectual entail,” that he was only adding words that were superfluous, and that no real meaning was to be attributed to them, but that they were entirely analogous. And to show that that was his idea, we were referred to certain matters which had taken place in Lord Lynedoch's lifetime, which I will shortly advert to, but with the observation that I reserve my opinion as to how far they can have any legitimate bearing upon the question before your Lordships.

It appears that in the year 1787, Lord Lynedoch

Page: 301 ↓

My Lords,

if this were a matter before a jury, and I were to decide it, I should say that great weight is to be attributed to this fact. I should say, very likely he did so understand it, but my doubt is whether it has any bearing upon the question. No doubt, whether he did or did not believe so, the fact is that when the thing was to be done, all he did was to substitute certain

Page: 302 ↓

Precisely the same proceeding took place in 1805, and again in 1811; it was stated in argument, that the language in the Act of 1811 was somewhat stronger than that of the other Acts, inasmuch as the lands which were directed to he substituted were to be in the form of a strict entail, and under all the conditions, provisions, declarations, limitations, and irritances limited, and so on, by the aforesaid deeds of entail, in so far as the same are now subsisting, or capable of taking effect, which settlement and entail shall be so framed as to bind the said Thomas Graham or other person executing the same, as well as the succeeding heirs of entail.” When, in conformity with that Act, the deed was made, (merely following the deed of 1726,) the circumstance was relied upon, as showing that these parties must have understood that that deed created an effectual entail, and the more so, as when that deed was made in pursuance of that direction, it was made a few days before the trust disposition, the construction of which is now before your Lordships. It began in this way:

“Considering that Thomas Graham, some time of Balgowan, now deceased, did, in and by a certain deed of entail, executed by him and John Graham his son, which is dated the 17th day of February and 9th day of June, 1726, and duly recorded in the Register of Entails, kept at Edinburgh, upon the 30th day of December in the same year, settle and secure, by way of strict entail, his lands and barony of Balgowan, and others in the county of Perth.”

Then Lord Lynedoch goes on, and settles these substituted lands only a few days before the execution of this trust disposition. That, it is contended, is conclusive evidence to show that he supposed that the deed of 1726 was a valid deed of

Page: 303 ↓

Now, my Lords, supposing that as matter of fact, that is a conclusion to which it would be reasonable to arrive, what I venture respectfully to suggest to your Lordships is, that that is not a matter which this House can take into consideration at all. Where the settlor, the testator, or the maker of the deed has used words that in themselves are perfectly clear and unambiguous, you have no right to go into extrinsic evidence to show how he understood those words. That doctrine has been so very often considered of late years, that it would be, I think, mere pedantry to go through the cases on the subject. I merely allude to one which concluded the question in your Lordships' House. It was a case of the very strongest description: I allude to the case of Mr. Oxenden (a) , in which, having an estate, the largest portion of which was situate at a certain place called Ashton, but other estates situate in adjoining parishes, he was in the habit of always speaking of his estate as “my Ashton estate.” He kept his books in that way, and his stewards kept them in that way, and whether an estate was in the parish of Ashton or not (it did not appear to him the least material), he called it his Ashton estate; and in his will he said, “I give all my lands in Ashton.” In the first place it was held that that meant “all my lands at Ashton;” but, after the case had gone through all the courts, and eventually had been brought here, Lord Eldon , in concurrence with all the Judges,—Chief Justice Gibbs expressing the opinion of the Judges,—came to the clear conclusion, that it was an expression which admitted of no doubt whatever upon the face of it, and that you

Footnote

( a ) Oxenden v. Chichester , 4 Dow, 65.

Page: 304 ↓

Those are the short grounds upon which it appears to me that the Court below have come to a correct conclusion. The grounds upon which they proceeded were, that there is nothing inconsistent in the two directions; that it was quite right to direct that the deed should contain all the provisions of the former deed, and that it was consistent with that to say that it should be done, “so as to form a valid and effectual entail according to the law of Scotland;” that that is a direction which may be easily and effectually executed; and that, even if you imagine that Lord Lynedoch had a different intention, you cannot collect that intention; you are not at liberty to look to external circumstances to collect it, but you must be guided, not by what you suppose from external circumstances was his intention, where you can ascertain

Page: 305 ↓

Lord Brougham's opinion.

The Lord Brougham :

My Lords,

in dealing with this case I am prevented by two circumstances from entering at large into the argument. The first is the able and distinct manner in which my noble and learned friend, with whom I agree, has gone into the question; and the other is the accidental circumstance that I really was not aware that this appeal was in the paper to-day, and, I had prepared myself to give judgment in another case, which I believed to be in the paper; and therefore, I had not looked into this case with a view to give judgment upon it to-day. However, after having had considerable doubt upon it in the course of the argument, and at one time having even had an inclination of opinion against the judgment appealed from,—yet during the residue of the argument and before it closed, I had come to the opinion which has been expressed by my noble and learned friend in favour of the decision of the Court below.

My Lords,

it is in vain to speculate upon what Lord Lynedoch himself would have done, had he been the party to frame the instrument himself, and to make the entail, instead of only giving instructions to his trustees to make that entail. Probably, and I may say I think it very likely, that he would have taken the course which it is said would have been sufficient, according to his understanding of the law as it then was, before the decision of your Lordships' House, finding the fencing clauses of the old entail of 1726 insufficient. It is very likely that he himself, considering those clauses to be sufficient, might have made

Page: 306 ↓

Now, I cannot get over the argument, which appears to have had weight with the majority of the learned Judges in the Court below, as it has with my noble and learned friend, that in order to reverse this judgment and agree with the minority of those learned Judges, you must really strike out that very essential part of the fourth provision, beginning with the word “ And ,” “and so as to form a valid and effectual entail;” and you must leave it as if it were “under all the conditions, provisions, and clauses prohibitory, irritant, and resolutive in the said deed of entail contained, in so far as the same may be applicable.” We cannot do that. We have no right to strike out these words, for he qualifies it or he extends it (I care not which) by adding these words. He says you are to make the entail under all the conditions, provisions, and clauses in the said deed of entail contained; and not only does he say so without adding “and none other,” or without adding “allenarly,” or any other words that would restrict the trustees to those very clauses, and prevent them from adding to or altering those clauses,

Page: 307 ↓

Page: 308 ↓

Lord St. Leonards' opinion.

The Lord St. Leonards :

My Lords,

this case was decided in the Court below by three Judges against two. I am of opinion with the minority, and I think that the decision of the Court ought to be reversed. The facts previously to the trust disposition executed by Lord Lynedoch are simply these, that the estate was settled according to the law of Scotland in 1726, by a deed intended to be, no doubt, a strict entail, and which was a strict entail according to the forms of the law of Scotland at that time, except, as it ultimately appeared, that there was one of the fetters not sufficiently fenced, namely, that against selling, which wouldtherefore enable the heir of entail by going through a form to avoid the settlement in question.

Now, at the time the entail was made, of course it was considered a perfect entail, and for a very long period after that time, for upwards of a century, it was deemed a very good entail. It never occurred to the mind of any man that there was a defect in it. Lord Lynedoch himself had purchased from time to time portions of the fee-simple property, which were contiguous to the principal estates, and which he thought of great importance to be attached to them for the purpose of joint holding. He accordingly obtained three several Acts of Parliament, for the purpose of

Page: 309 ↓

Now, the Acts of Parliament themselves were very strongly framed. Under the first, Lord Lynedoch was authorized to apply to the Court of Session, and with their direction and approbation to grant and execute disposition of the fee-simple lands in such form and manner as shall appear to the Judges of the Court proper for effectually settling and securing the said lands and estates, free of all debts and incumbrances, upon the said Thomas Graham, and the other persons and heirs of entail, called by the aforesaid deed of entail, in the same form of a strict entail. The Judges at that time were of opinion, that the proper mode of effecting the settlement of these estates was to settle them exactly in the very words of the settlement of 1726.

In the later Act of Parliament, that of 1811, the direction was still more singular. It was, “to grant and execute a disposition of the aforesaid lands in such form and manner as shall appear to the Judges of the Court in either Division thereof proper for effectually settling and securing the said lands and estates, free of all debts and incumbrances, upon the said Thomas Graham,” “and the other persons and heirs of entail.” Then come these words, “called to the succession in

Page: 310 ↓

But there was also a clear intention expressed, which was to convey these estates to the uses of the deed of 1726. These deeds are all recited in the trust disposition of Lord Lynedoch, upon which the House now has to decide; and therefore this is not a question as to how far you may go into extrinsic circumstances by collateral evidence, in order to place yourself in the situation in which the testator or grantor stood at the time that he directed the settlement to be made, because, upon the very face of the settlement those different dispositions and instruments are stated, and consequently you are entitled to look at them, not for the purpose of striking out these words—I disclaim any such intention,—nor for the purpose of giving to them a meaning which they will not admit of, but for the purpose of enabling you to ascertain the sense in which ambiguous words were used by the testator in the clause in question.

Now, so far, it is perfectly clear that this was the great object of Lord Lynedoch's life, to annex to the family estate all the portions of the estate which he

Page: 311 ↓

Let us suppose this case, that immediately after Lord Lynedoch's death there had been a settlement executed, that the Judges had had to settle the estates, how would they have settled them? They would clearly have settled them according to the settlement of 1726,—no one doubts that; according to the extent of knowledge of the law of every professional man in Scotland, from the lowest to the highest, every agent, every writer to the signet, every advocate, every judge, all the parties concurred in the construction of the settlement of 1726, that it was a binding and legal settlement according to the law of Scotland, with sufficient irritant and resolutive clauses to carry the estate, so far as the Act of 1685 would allow any estate to be carried. Then the whole difficulty has arisen, not upon what those words would authorize you to do,—because, when you are talking of striking out the words, as I have said already, I utterly disclaim any such intention,—not merely of striking out the words, but of putting a forced and unnatural construction

Page: 312 ↓

Then some person discovers that there was a defect in this settlement; but what was that defect? It was not a defect arising out of the natural construction or the proper construction of this settlement of 1726, by no means; but the Courts of Law in Scotland, aided by this House, having taken the same view of the Statute of 1685 which our Courts of Law here took of the Statute De donis , that is, setting their minds against the strictness of entail which was allowed by the Statutes, and being desirous of throwing lands into the general commerce of the country, made a forced, unnatural, and I may say without offence, an improper, construction of these instruments, in order to avoid the instruments and to defeat the fetters, and to throw the property for general purposes into circulation; but that was not their natural construction, and when the point was raised with regard to this deed the Lord Ordinary was of opinion that the fetters were good. When it went to the Lords of the First Division they called in all the Judges of Scotland and they were consulted upon it, and there

Page: 313 ↓

How has that been followed up by the Legislature itself? Why, by the Act of Parliament, which says, that if there is one fetter in an entail not sufficiently fenced, the whole entail shall be void. That is strong legislation; but it is a strong approbation of the course which had been taken by the legal tribunals. Their object has been that which has been ultimately accomplished by the Legislature, to avoid fetters by every possible construction,—not to look at the intention, but to look and see whether it is possible, upon a mere construction of words, to get rid of the fetters, and so to enable the parties to defeat the entail.

Now, it was stated by my noble and learned friend on the Woolsack—and it does sound somewhat odd—that you are not asked to convey this estate to this gentleman in fee-simple, when a strict entail was intended, that it does not depend upon the settlement, but upon the Act of Parliament; that the intention is not an element to be looked at in this case. You are not at liberty in construing this settlement to look at

Page: 314 ↓

Now, if we were to look at this case as it stood irrespectively of the discovery of this blot in the entail of 1726, I take it to be perfectly clear that we should have directed the settlement to be made according to the settlement of 1726, and I take it to be equally clear that if the settlement had been so made, no subsequent discovery of the blot could ever have enabled any Court of Justice or this House itself to reform that settlement; but the subsequent settlement, like the original settlement, must have stood precisely as it was formed. Now, the real difficulty here, as it appears to me, arises from this, that two things are confounded. In point of fact, the thing which is the wrong to be complained of, as it turns out, and which the testator, Lord Lynedoch, would have liked to have had corrected, if be had known of it, was, not the settlement, which, in my view, his own deed authorized, but the settlement of 1726. There is the corpus delicti , there is the mischief; it is not in the direction to make a settlement in conformity with the original settlement, but it is in the original settlement itself. Nobody knew of that blot, and that Lord Lynedoch, by the words which I will presently refer to, meant to correct that, or to vary it in any manner, I cannot satisfy myself. My Lords, most unwilling as I am to differ

Page: 315 ↓

Now, it is a very strong circumstance, and I am entitled to look at these circumstances; we are bound to look at the circumstances of the previous settlement, because here it is no question as to extrinsic evidence; these settlements are recited and made evidence upon the face of the instrument itself. Eight days before this trust disposition, Lord Lynedoch conveyed over this estate to the uses of the settlement of 1726. Now, my Lords, if Lord Lynedoch had himself included the estates now in question in that settlement, or if he himself had executed a separate settlement of that or of any other part of his property, if instead of the trust disposition of 1821, he himself had executed his own purpose,—had made the very settlement which he directed the trustees to make; I ask, can any one doubt what would have been the settlement that Lord Lynedoch would have made of those estates? The answer is clear, that from all that appears, with all the knowledge he had we are entitled to say that in this case he would have followed the settlement of 1726, upon the belief which everybody entertained that that was a perfect settlement. Clearly he would have acted upon that, as he did in all the other settlements: it would not have altered his intention, nor could it have altered the settlement which was made by him. So far, I think, we are agreed. Then comes the trust disposition eight days later; and that trust disposition directed that the remaining estates should be in conformity with the uses of the deed of 1726. He was not sure that there would be any estates

Page: 316 ↓

Page: 317 ↓

Page: 318 ↓

Page: 319 ↓

Now, my Lords, in my apprehension it is impossible to read the disposition of 1821 without being thoroughly satisfied, as a lawyer, that the great object that Lord Lynedoch had, was to annex this small additional property to the other property. But now, having cleared the way rather, by the observations submitted to your Lordships, very humbly, I will ask your Lordships' attention once more to the actual trust disposition; it is in these words: they are to pay all the debts and so on, and then he says, “Fourthly, after fully accomplishing the purposes aforesaid, if any of my lands and heritages before disponed shall remain unsold, my said trustees shall in due form of law dispone and convey the same to the heirs of entail called after me in and by a certain deed of entail executed by Thomas Graham, sometime of Balgowan, and John Graham his son, dated on or about the 7th February and 9th June 1726, under all the conditions, provisions, and clauses prohibitory, irritant, and resolutive in the said deed of entail contained, so far as the same may be applicable, and so as to form a valid and effectual entail according to the law of Scotland.”

Now let us see what the meaning of that is,—In the first place, what is the primary intention? It is clearly as he has told you. He refers to the register of deeds. He refers to the entail of 1726, and to all the conditions, provisions, and clauses prohibitory, irritant, and resolutive contained in that deed. There can be no doubt, therefore, that his original primary intention was to settle these properties to the uses of the deed of 1726. Some of those conditions were no longer applicable. He therefore introduces these words, “so far as the same may be applicable,” and in my opinion

Page: 320 ↓

Page: 321 ↓

If it had stood upon that alone, I should have put that construction which was conformable to the whole tenor of the circumstances, and then all that would happen would be this, that this remnant of the property would have gone along with all the rest of the property, and be subject to just the same line of succession, no higher or lower, no greater, no less, than these estates themselves. But when I come to look at the dispositions of Lord Lynedoch, I see that throughout he intended those estates to go with the other estates. But if they go as the Act of Parliament now orders them to go, one estate will go to one party and another estate will go to another party. Therefore I know I have defeated his intention. I am making a new separate entail now of that which it never entered into his mind should be so entailed. He thought the whole of the estates would go together, and I believe, as I have said before, that the very last thing he desired is that which your Lordships are now called upon to do, namely, to cut off those estates and leave those remnants of estates separate from the others. Those were estates, I should suppose, of very small value, but under this decision they are to be a separate

Page: 322 ↓

Nobody admits more than I do that we are to construe this instrument of Lord Lynedoch's according to its plain import, and give effect to it, and if I had the power I would give effect to his intention, and to the words which express it in the most literal way in which it is possible to do it. But I think I am doing so in the view I submit to your Lordships. Now he recites what he has done upon the face of his own disposition of 1821. He recites that he has settled these lands, and he has no notion of course that he has not settled them properly; this is a matter which admits of no doubt. By a codicil executed in 1838 he particularly recites the settlement which he has made, and he states that, after the payment of his death-bed and funeral expenses, he directed the estates to be conveyed as follows—he here recites what the settlement of 1821 was; and I beg your Lordships' attention to this—this is a codicil executed by him in 1838, in which he states what he considered he had done in 1821:—“And whereas by my said trust disposition and settlement I directed the debts and sums of money due to me at my death might be uplifted, and that my moveable estate, and lands, and heritages thereby conveyed might be sold, in whole or in part, at the discretion of my said trustees; and that after payment of my death-bed and funeral expenses, expenses of executing the said trust, my just and lawful debts, and any legacies, donations, and sums of money ordered by me to be paid as aforesaid, if any part of my said lands and heritages should remain unsold, my said trustees should convey and dispone the same to my heirs of entail called after me by the deed of entail of Balgowan, and should also lay out the remainder of my

Page: 323 ↓

Then, my Lords, he states in the disposition of 1821, that he has in one part of his disposition directed that if the trustees whom he has appointed shall fail, then certain things shall take place. “And failing all my trustees named or to be named or assumed, by non-acceptance, death, or otherwise, then to the person or persons who shall succeed to me as heir or heirs, male and female, of the Balgowan estate for the time,” and so on. Now, I ask your Lordships, was it likely that unless he intended his estates to go strictly together, he even could have ordered that the heirs of entail of the Balgowan estate under the settlement of 1726 should be the trustees of this new settlement? Can anything be more inconsistent than to say that his intention was that his estates should be severed, and yet that the heirs of entail of the Balgowan estate should become the trustees of this separate portion of land? It is quite clear he intended no such thing, but that he expected the estates to go together.

But, my Lords, how are we to get over this clause? This was a point very much relied upon at the Bar. It is as follows:—“I declare and appoint that the rents and profits of my said unentailed lands and heritages, and of my lands to be purchased by my said trustees while vested in their persons, as well as the annual interest and produce of any monies that may be in their hands arising from the sale of any part of my estate, heritable or moveable, whether under the

Page: 324 ↓

And then to whom are the several debts to be paid? Are they to be paid to the persons who really will have them, or are they to be paid to the heirs of the Balgowan estate? Is the heir of the Balgowan estate to have them, or is the person who is no longer heir of the Balgowan estate, who may have sold it or lost the Balgowan estate, entirely to have them, or is the person to have them under this new settlement? Those are difficulties which it appears to me impossible to get over; but all the difficulties are avoided by giving what I consider an easy and natural construction to the words upon which the difficulty has arisen, and thus making these estates go with the rest of the property.

Now, my Lords, I must say a word upon the question of constructive trusts. It is a matter so well settled now, that it is mere pedantry to go through the authorities. Every trust where an act is to be done, or a common conveyance to be executed, is an executory trust, no doubt, in a

Page: 325 ↓

There is a case upon the subject which was very much considered before Sir William Grant —the case of Stanley v. Stanley (a) . It is a case of this nature. The testator directed his estate to go to the second son of one of his nephews for life, and then to trustees to preserve contingent remainders, and then to the first and other sons of that second son; and if that second son died without issue male, or did not attain 21, then it was to go to the third son, and in like manner on his death without issue male it was to go to the fourth son. Then he declared that there was another estate in the family, called Puddington, which he wished not to be united with his estates, and he made a provision of this nature, that in case any of those persons to whom he had thus given this property should become possessed of the estate of Puddington; then “the estate devised to such of them so becoming possessed as aforesaid, shall thereupon cease and become void or not take effect or be made,” (that is, under the settlement that was directed to be made,) “as the case may be, and the persons next in remainder under the said limitations or directions shall thereupon become entitled to the estates.” Then came this important clause—“And I do further direct

Footnote

( a ) 16 Ves. 491.

Page: 326 ↓

Page: 327 ↓

That appears to me to be a much stronger decision than I should wish to give here. I think it, and

Footnote

( a ) 16 Ves. 511.

Page: 328 ↓

My Lords,

there is a case which will exemplify the danger of separating properties in this way. It was before the same Judge,—the case of Brouncker v. Bagot (a) . That was a case of this nature. It was not a case of an executory trust, but the testator devised his real estate to one for life, remainder to trustees to preserve contingent remainders, remainder to the heirs of his body, so as to give them an estate tail with remainder over, and in every case a remainder to trustees to preserve contingent remainders. And he then gave his leasehold estates to trustees upon the same trusts, with the same limitations, as he had given his real estates upon; and having been Counsel in the case, from the notes I have I see that the words giving the leasehold estates are much larger in the will than they are stated in the report. There were more ample words showing the intention that these leasehold estates should go along with the real estates to those different uses. Now, the question was, in what way those leasehold estates were to devolve. If they were to be taken by the analogies of the common rule, that an estate tail in real property gives an absolute interest in a leasehold estate, then, of course, you are to strike out the trusts, and to substitute, in effect, a simple gift of the leasehold estates to the first man and his executors, administrators, and assigns. It was argued, by Counsel, against the lease-hold

Footnote

( a ) 1 Mer. 271.

Page: 329 ↓

Footnote

( a ) 1 Mer. 282.

Page: 330 ↓

Interlocutors affirmed .