Martin Et Al. v. Kelso Et Al. [1857] UKHL 2

UKHL
Martin Et Al. v. Kelso Et Al.
[1857] UKHL 2 · 1849-03-29
Reports of Cases Argued and Determined in The House of Lords.

No. 35

Martin Et Al., Appellants v. Kelso Et Al., Respondents

1857 . Feb . 24th , 26th , 27th . March 21st .

Subject_ Construction. — Entail. — Execution of Power. —

Circumstances under which it was held : 1. That the words “so often as apparent or presumptive heirs are females,” did not exclusively mean daughters of the person executing a power, but might mean daughters of any one to whom the succession opened under the destination;2. That the power given to the heir of entail in possession of selecting one of the heirs portioners to the exclusion of others, was a power of substituting the younger for the elder, not to the effect of giving her a liferent, but so that the right of succession might go to the heirs of her body under the entail;3. That a deed inter vivos was not an improper form of executing the power;4. That the power might be executed by the heir of entail in possession, precisely as if he were a proprietor in fee simple; and that no subsequent alteration of circumstances could defeat the execution.5. Lord Rutherfurd's Act.—Semble Lord Rutherfurd's Act.—Semble , that the remedies under Lord Rutherfurd's Act, having a similar object, are to be worked out on the same principle as those which govern the English Fines and Recoveries Act.This case, one purely of construction and exceedingly special, is reported at very great length as decided by the Second Division of the Court of Session on the 19tli July 1853 (a) .The Lord Advocate (b) and Mr. Rolt appeared for the Appellants.The Attorney General (c) and Mr. Anderson for the Respondents.

Footnote

( a ) Second Series, vol. xv. p. 950.( b ) Mr. Moncreiff.( c ) Sir R. Bethell.

Page: 557 ↓

The facts and the points are fully stated in the following opinions delivered on the motion for judgment:—Lord Chancellor's opinion .The Lord Chancellor (a) :My Lords,in this case there are two appeals against several interlocutors of the Court of Session, pronounced in the first instance in an action of reduction, brought by the Appellants, to reduce certain instruments mentioned in the summons; and, secondly, upon a summons called, whether correctly or incorrectly, a supplemental summons. The result of those interlocutors was to assoilzie the Defenders altogether.The questions, or rather the question (for in truth the whole is resolved into one question) arises in consequence of a certain deed of entail which was executed in the year 1764 by a lady of the name of Mary Kelso, concurring with her sister, Jane Kelso, who were, or one of whom was, seised in fee of a certain estate called Dankeith, in the county of Ayr; and by that deed of entail, which was duly registered, and infeftment duly taken upon it, Mrs. Mary Kelso, one of the persons entitled, took to herself the estate, as the first institute in the entail; whom failing, the estate was settled upon Captain John Kelso, described as the only son of Robert Kelso, her first cousin, and the heirs whatsoever of his body; he being, therefore, the first heir substitute, and then, failing him or his heirs, it was settled upon a number of persons in succession as successive substitutes, and the heirs male of their bodies. It is not necessary to state particularly of whom those consisted. Then there was a proviso, “that the eldest heir female and the descendants of her body, so oft as the succession shall

Footnote

( a ) Lord Cranworth.

Page: 558 ↓

The settlement contained proper fetters against altering the order of succession, against alienation, and against contracting debts; and there were proper clauses irritant and resolutive, making this a very complete entail. It was duly registered; and therefore, as to the validity of that entail no question has been or could be raised.The proceedings do not show precisely how the succession took effect; it does not appear who were the different heirs, except that on the death of the lady who settled the estate, Captain John Kelso, who was the first heir substitute, succeeded to her, she dying without issue. He, therefore, became the heir of entail in possession, to himself and the heirs whatsoever of his body.What does appear is, that some time prior to the year 1837, between seventy and eighty years after the date of the settlement, the estate had come into the possession of Colonel William Kelso as the heir of entail in posession under the deed of entail. Colonel William Kelso, being thus in possession, on the 4th of April 1837 executed a deed whereby he purported to give the estate, after his own death, without heirs of his own body, to his younger sister, Miss Eleonora Kelso. Colonel William Kelso was a bachelor; and at that time his four heirs apparent were four sisters, of whom Miss Eleonora Kelso was the youngest; the eldest was a Mrs. Martin; and there were two intermediate sisters.According to the provisions of the original settlement, upon the death without issue of Colonel William Kelso, the estate as settled would devolve upon Mrs. Martin, as being the eldest of the heirs portioners. But in the deed of entail there was a clause declaring

Page: 559 ↓

Now, Colonel William Kelso being thus in possession as heir of entail under the settlement of entail, and having, as I have already stated to your Lordships, four sisters, of whom Mrs. Martin was the eldest, who would therefore have succeeded if nothing had been done to alter the succession, and Miss Eleonora Kelso, the youngest, who would not therefore have succeeded, Colonel William Kelso, in pursuance of the power given to him by that exception, executed a deed, dated the 4th day of April 1837, whereby, reciting the deed of entail, he says:
“I have resolved to exercise the said power conferred by the said deed of entail on me, as one of the descendants of the body of the said Captain John Kelso, by calling my said sister Eleonora and the heirs of her body, first to the succession of the said estate of Dankeith, failing heirs of my own body.”
He accordingly did so; and failing heirs of his own body, called Eleonora to the succession instead of the eldest sister, Mrs. Martin.Colonel William Kelso died in the month of April 1844; and upon his death Miss Eleonora Kelso claimed to be the heir of entail by virtue of the original entail, coupled with the deed which had been

Page: 560 ↓

So matters remained until the year 1849. And on the 14th of April 1849, Miss Eleonora Kelso, never having married, executed a deed, whereby she took upon herself to exercise the same power which had been exercised by her brother, giving the estate, in truth, after her death, to one of her intermediate sisters, Mrs. Utterson, instead of Mrs. Martin. The way in which she did this was, not by a mortis causâ mortis causâ deed, but by a deed taking effect immediately, which proceeds in this way :—“Considering that, by the said deed of entail, power is inter alia given to the descendants of the body of Captain John Kelso, the first substitute thereby called to the succession of the said estate of Dankeith, so often as their apparent or presumptive heirs are females, so far to alter the destination of succession therein written as to settle the estate upon a younger daughter in preference to an elder daughter, and for that end to grant such deed or deeds as shall be competent of the law, in the same manner as an unlimited proprietor might do, and seeing that my presumptive heirs of entail in the said estate of Dankeith are my sisters, and that from the favour and affection I bear to my youngest sister, Mrs. Mary Susanna Kelso or Utterson,” “and other good causes and considerations,—I have resolved to exercise the said power conferred by the said deed of entail upon me, as one of the descendants of the body

Page: 561 ↓

About a year after the execution of that deed, namely, in the month of February 1850, Mrs. Martin, who was the eldest sister of Colonel William Kelso, and of Eleonora, died, leaving the Pursuer her eldest son and heir-at-law, and he would, therefore, have been the person to succeed if the entail had remained unaffected, and had existed in the same way as it was at its original creation.Very soon after the death of Mrs. Martin, namely, in the month of March 1850, Miss Eleonora Kelso, together with three of the next entitled in the entail, supposing the entail to have been regulated by the deed which she had executed, proceeded, according to the directions of the Statute of the 11th and 12th of Victoria, chapter 36, section 3 (a) , to disentail the estate. As the heir of entail in possession, she, together with the three next entitled (which is the number required by that section of the Act), proceeded, by a petition to the Court of Session, to get a declaration and proper order, whereby the entail should be put an end to. That was done, and it was quite regular, if she was the heir of entail in possession, and those three other persons were the three next in succession, which they would be if she, being properly the heir in

Footnote

( a ) Lord Rutherfurd's Act.

Page: 562 ↓

Those being the instruments which had been executed, and the transactions which had taken place,, the original action of reduction in this case was raised on the 27th of May 1851 by Mr. Martin, the eldest son of the eldest sister, Mrs. Martin, claiming to be the heir entitled under the original entail, alleging that neither the deed executed by Colonel William Kelso, his uncle, nor that executed by Miss Eleonora Kelso, his aunt, had deprived him of his right; and upon certain grounds which he alleged, he prayed a decree of reduction of the deed executed by Colonel William Kelso, of the decree of declarator immediately following his death, of the instrument of sasine thereupon, of the deed made by Miss Eleonora Kelso in the year 1849, and of the proceedings which were taken under the Act of Parliament, for the purpose of disentailing the estate.That was the original action. When that action came on, it was regularly proceeded with, and there was an interlocutor by the Lord Ordinary, which led the parties to discover that there was one point which had not been sufficiently raised, namely, the question whether or not the power which was contained in the settlement, under the exception to alter the course of succession, where otherwise heirs portioned would have succeeded, extended to the case of collateral heirs portioned, or only to daughters strictly so called; and another action of reduction was instituted for the purpose of raising that question, whether correctly to be called a supplemental action or a new action, I do not think it is necessary at all to inquire.

Page: 563 ↓

Upon those two actions the question was fully raised. They were considered separately by the Court of Session, and the Court of Session eventually came to the conclusion that the Defender was altogether to be assoilzied, for that there had been valid proceedings whereby the course of succession had been validly altered; and that by the proceeding in the Court of Session under Lord Rutherfurd's Act the entail had been effectually barred.The first question is, as to the construction of this exception in the deed. Does that exception extend to collateral portioners, or only to lineal (a) heirs portioners? The language is this :—“With this exception, that it shall be lawful to the said Captain John Kelso, and the other descendants of his body” (that is to say, it shall be lawful for Colonel William Kelso), “so often as their apparent or presumptive heirs are females”(which was certainly his case, for the presumptive or apparent heirs were his four sisters), “so far to alter the destination of succession above written as to settle the estate upon a younger daughter in preference to an elder daughter, or to pass by such daughters altogether and settle the estate upon the presumptive heir male.” The question is, whether or not that was a power to Colonel William Kelso to settle the estate when his presumptive heirs were four heirs portioners, sisters, or whether it was a power confined to the case of his having four apparent or expecting heirs, being his own daughters?The conclusion at which I have arrived is that at which the Court of Session ultimately arrived, namely, that the meaning was that this power was to extend to any case in which the apparent or presumtive

Footnote

( a ) That is, heirs in the direct line of descent. A lineal heir may be in the direct or in the collateral line. A lineal line is a phrase not of clear meaning.

Page: 564 ↓

That being so, the next question is, what was the power that was conferred by this exception? It was argued that it was only to give a life interest to the daughter or sister who should be preferred. The expression is, “and may settle the estate upon a younger daughter in preference to an elder daughter, or pass by such daughters altogether, and settle the estate upon the presumptive heir male.” It is a power so far to alter the destination as to settle the estate upon the

Page: 565 ↓

The next question, and perhaps the most important question, is this, Did the power arise when the heirs were females, at the time that the alteration in the destination was made by the heir in tail in possession, or was it only to arise in case the heirs were females at the time when the succession opened? Now, upon that point there was a difference of opinion amongst the Judges below; and undoubtedly a very able opinion was given by one of the Judges in the Court

Page: 566 ↓

Page: 567 ↓

The question, I apprehend, is not embarrassed by the consideration pressed in the argument, namely, that this construction would tend to defeat the entail, because the person executing the deed might himself have a son or daughter, who would be the person coming in according to the strict line of entail. That is very true, but in such a case you want no reason at all, because in that case there is no power given, for the power only is so far to alter the destination and succession as to settle the estate upon a younger daughter in preference to an elder daughter, and not to alter the succession so as to settle it upon a younger daughter in preference to the heirs male of his own body, or the heirs general of his own body. If he had heirs of his own body, no doubt the whole would fall to the ground, not by reason of any necessity of considering the question, whether the heirs were heirs portioners at the time of the death or at the time of the settlement; but because the power in that case would not have come into operation at all.Then it was said,—this ought not to have been done as it was done, by a deed operating immediately, but only by a mortis causâ mortis causâ deed; I think there is nothing in that objection. The deed executed by Miss Eleonora Kelso, though not a mortis causâ mortis causâ deed, was a deed strictly calculated to carry into effect the provisions or the intention of the original settlor, for it was a deed whereby she, being heir of entail in possession, by virtue of an instrument that had been executed by her brother, makes this estate still continue to her and the heirs of her body, just as it would whether it was a mortis causâ mortis causâ deed or a deed inter vivos , and only on failure of heirs of her body gives it over to the second daughter instead of the eldest

Page: 568 ↓

The only remaining question, which was strongly argued upon at the bar, was a question upon Lord Rutherford's Act. I cannot have the least doubt that the meaning of the Act was, that whenever there was an heir of entail in possession, and that heir of entail had, with the concurrence of the three persons next entitled to succeed,—I am speaking of old entails, with regard to new entails it is different;—but with respect to old entails, if there was an heir of entail in possession, and there were three other persons who, rebus sic, stantibus , would be the persons next entitled to succeed, and they concurred in taking proper proceedings in the case, the entail would be barred, just as it might have been by a recovery in this country, or now by the simpler mode that prevails under the recent Act of Parliament (a) . That was done, and the circumstance that afterwards other persons may come in esse, whose rights as heirs of entail would over ride theirs, is unimportant. The object of the Statute evidently was that the heir of entail in possession, with the concurrence of those who at the time are the heirs of entail, so to say, in expectancy, may have the power of putting an end to the entail, the inability to do which, as we well know, had been such a scandal upon the law of Scotland for a very long time, and which this Act of Parliament was introduced to remedy; and to hold that this remedy would not apply to such a case, because other persons having new rights might come

Footnote

( a ) The 3 & 4 Will. 4. c. 74. the Fines and Recoveries Act.

Page: 569 ↓

Upon the whole, therefore, my Lords, the opinion at which I have arrived is, that the interlocutors of the Court below were entirely correct, and therefore the course I shall take is to move your Lordships that the Appeal be dismissed.Lord Wensleydale's opinion .

Lord Wensleydale :

My Lords,I entirely concur in the opinion which has just been given by my noble and learned friend.The first Appeal in these cases is from the judgment of the Court of Session, on the supplemental summons of reduction of the deed of settlement made the 4th April 1837, by Colonel William Kelso; and the question is, whether that settlement was authorized by the deed of entail granted by Mrs. Mary Mc Gill or Kelso, on the 27th day of April 1764.That deed entailed the lands of Dankeith to herself and her assigns; whom failing, to Captain John Kelso, and the heirs of his body; whom failing, to other heirs of entail therein specified; it being declared that the eldest heir female and the descendants of her body, so often as the succession shall devolve upon heirs female or their descendants, excluding all other heirs-portioners, and succeeding always without division, throughout the whole course of succession. Then there is a provision, that it shall be lawful to the said Captain John Kelso and the other descendants of his body, so often as their apparent or presumptive heirs are females, so far to alter the destination of succession above written, as to settle the estate upon a younger daughter, in preference to an elder daughter, or to pass by such daughters altogether, and settle the estate upon the presumptive heir male descended of the body of the said Captain John Kelso;

Page: 570 ↓

Colonel William Kelso was a descendant of the body of Captain John Kelso, and was his heir of entail in possession of the estate; and when he made the settlement which is in question on this supplemental summons, he had no issue. His presumptive heirs were his sisters, namely, Mrs. Martin (the Pursuer's mother the eldest) Margaret Kelso, Mary Susanna Utterson, and Eleonora Kelso, who all, except Mrs. Martin, survived him. He on the 4th April 1837, proceeding on the powers of alteration contained in the original deed of entail, executed a deed of that date, by which he called his sister, Eleonora Kelso, and the heirs of her body, first to the succession of the estate of Dankeith, failing heirs of his own body.Then there is a clause in that deed :
“If it should be held that I am not entitled, under the power granted by the said deed of entail, to call the heirs of the body of the said Miss Eleonora Kelso to succeed after herself, and before the other heirs whatsoever of the said Captain John Kelso, then and in that case, I declare that this deed shall take effect to the extent only of calling the said Miss Eleonora Kelso herself to succeed me in the said estate, in preference to her sisters and their children; and in that case also I recal and annul the destination before written, in so far as it calls the heirs of the body of the said Miss Eleanora Kelso immediately after herself.”
Two questions arise upon that deed in the supplemental summons; the first and most important is, Whether the power to alter applies to a case where

Page: 571 ↓

The first question depends upon the construction of the clause in question; there was much argument whether it was to be construed strictly, as clauses are to be construed which impose fetters, or liberally, because relaxing them, and restoring the dominion to a certain extent, over the estate.I must own that I think that in any mode of construing the clause, the words are sufficiently clear. The power arises whenever the heirs presumptive or apparent, happen to be females. If the intention had been to confine the power of selecting, to the case of a father with several daughters, the deed would have so expressed it. But the terms are very explicit, that whenever the presumptive heirs are females, be they sisters, nieces, or daughters, the power is to be given. The words “ a daughter,” which follow, are not enough to restrict the use of the word “heirs female,” and confine it to the case of daughters. If it had been “ his daughter” it might have been urged, that the use of these terms restricted and limited the prior expression “heirs female,” and confined it to “heirs female being daughters.” But the general term “a daughter,” which is applicable to all females, does not qualify the previous description at all.The second question upon the construction of this clause may, I think, be easily answered. The power to settle the estate, and to substitute the younger for the elder, clearly authorizes the placing the younger in the like position as the elder, so that the right of succession

Page: 572 ↓

I am therefore of opinion that Colonel William Kelso was authorized by the clause in the deed of entail to prefer one of his sisters, and the heirs of her body, to the others.Was the deed, which was inter vivos and not mortis causâ, mortis causâ, an improper form of executing this power? I think it was not. There is nothing in the power so to limit it. At the time when next presumptive heirs are females, and it is, therefore, probable that the succession would devolve on the eldest, then the power of selection is to be executed, without waiting for the last moment of the life of the donee of the power; and it may be executed by him, by any competent deed, in the same manner as an unlimited proprietor might execute it. It may clearly be done, therefore, by a deed inter vivos . But it is true that the deed will not take its effect upon the succession, until the succession opens, and if then it turns out, that there is an heir prior in the order of entail to those who were apparent female heirs at the time of the execution of the power, it is wholly inoperative. That heir is not displaced, for as to every other heir of tailzie than the females, the prohibitions to alter the course of succession have their full effect. Therefore, if Colonel William Kelso had issue who would be prior in the course of succession to his sisters, the deed would be inoperative altogether. His power authorizes him to regulate prospectively, the succession among heirs female when it devolves upon them, or to substitute a presumptive heir male of the body of Captain Kelso for them, but he has not a power finally to dispose of the estate, and to supersede those who are prior in the order of

Page: 573 ↓

I am of opinion, therefore, that the deed of the 4th of April 1837 was a legal and valid deed, and cannot be reduced.The second question, which is the subject of the second appeal, is, what is the effect of the deed of disposition, by Miss Eleonora Kelso, of the 14th April 1849? Is this subject to objection upon any of the grounds alleged?There are three objections urged against it. First, that Miss Eleonora Kelso, being entitled only by the exercise of the power of Colonel William Kelso, and not by the original entail, as a descendant of the body of Captain John Kelso, could not herself exercise the reserved power when her presumptive heirs were females. This objection cannot prevail. It is clear that she was a descendant of the body of Captain John Kelso, and entitled by virtue of the tailzie to the estate, according to its provisions, including the provisions to alter. This objection, indeed, was not much pressed.Second, that this deed being inter vivos, and not mortis causâ, mortis causâ, was void. That objection has already been answered.The third objection was, that in substance there was an implied condition, that the succession should be in the same or a similar state when it opened, as it was when the deed was executed. At that time it was necessary that there should be two or more presumptive heirs female, in order to the due execution of the power; and it was contended that there ought equally to be two or more, when the succession opened, in order to give it effect. At the death of Miss Eleonora Kelso there were not three sisters surviving.

Page: 574 ↓

The clause in the original deed of entail is perfectly reasonable without it. It gives a present right to make a change which shall regulate future succession (adopting the language of the Lord Justice Clerk ,) and is in itself a present act, final, and not dependent on the state of things at the time of the death of the grantee; save always that there is no power in the grantee to displace any heirs entitled in priority to

Footnote

( a ) In course of the argument Lord Wensleydale said, “Suppose the donee of the power, after executing the deed, had ten children: would they be disinherited?” The Lord Chancellor asked, “If Colonel Kelso had a son, would the appointment become inoperative?” The Attorney-General:
“These questions, we submit, do not arise.”

Page: 575 ↓

I therefore concur in advising your Lordships to affirm the judgment of the Court below. And I entirely agree with my noble and learned friend as to the effect of Lord Rutherfurd's Act.Mr. Rolt: Will your Lordships allow me, upon the question of costs, to recal the attention of the House to this circumstance, that upon one or other of the points we raised we had four of the five Judges in the Court below with us, Lord Cockburn being the only Judge who was against us. And if the form had been strictly pursued we ought in reality to have been Respondents rather than Appellants. In fact, we have assisted the Respondents in getting a good title. It can hardly be said that upon such a decision as that, the title would have been a very satisfactory title without the decision of this House. I submit, therefore, that we should be free from costs.Mr. Attorney-General: My Lords, we did not desire these proceedings in order to get a good title; and as for the judgment, all the learned Judges were against them, though for different reasons. You do not scan the reasons which are given for a judgment. Your Lordships will not in this manner deal with the costs of an Appeal, when the decree of the Court below is affirmed.

The Lord Chancellor : I think the losing party must pay the costs.

Lord Wensleydale : It must be so, I think.

Interlocutors affirmed, with costs .Counsel: Grahame, Weems, and Grahame— Richardson, Loch, and McLaurin.