Scottish Court of Session Decisions

On 17th October, 1832, Sir Robert Preston of Valleyfield and Cul-ross, Bart., executed a trust-disposition and settlement whereby on the narrative that he had “resolved to vest his estate, real and personal, whether situated in England, Scotland, or elsewhere, in trustees, for the uses underwritten,” he conveyed to “Sir Coutts Trotter, Bart., Edward Marjoribanks, Esq., and Sir Edmund Antrobus, Bart., all of the Strand, London, bankers, and to the survivors or survivor of them, and their assigns, and the assigns of the survivor, in trust, for the uses, ends, and purposes hereinafter declared, and with and under the conditions, reservations, and exceptions underwritten, all and sundry lands, heritages, teinds, fishings, tenements or buildings, and other heritable or real estate, of whatever description, and all property and estate whatsoever, or of whatever denomination, now belonging or that may belong to me at the time of my death, wherever situated, in Scotland, England, or elsewhere, and also all debts and sums of money due or belonging to me at the time of my death, heritable or moveable, real or personal, wherever, and in whatever way secured, by heritable bonds or mortgages, or by personal bonds, invested in the public funds or banks, bills or other documents, as also all personal estate and effects, of whatever nature, quality, or denomination, with the whole writs and title-deeds of the said heritable subjects, and the vouchers and instructions of the said debts: Surrogating, and by these presents substituting, the said trustees, and the survivors of them, in my full right and place of the premises, with power to them to do every thing that I could have done before granting hereof, and binding and obliging me and my heirs to make up complete titles to the said lands, heritages, and heritable debts above disponed, if necessary, and to convey the same in all form to the persons above-mentioned, and their foresaids, for the purposes hereinafter mentioned; and I name and appoint the said Sir Coutts Trotter, Edward Marjoribanks, and Sir Edmund Antrobus, and the survivors and survivor of them, to be sole and only executors or executor of this my will, and intromitters and intromitter with my estate and effects falling under executry, hereby empowering them to expede confirmations and letters of administration in due and competent form, secluding from the said office all others, my nearest in kin.” The conveyance was declared to be tinder the conditions, and for the “ends, uses, trusts, and purposes herein underwritten; that is to say, providing and declaring, as it is hereby provided and declared, that these presents are granted by me upon trust: In the 1st place, that my trustees shall hold the lands and estates of Spencerfield,” &c. “and all other lands and heritages which shall belong to me in fee-simple at my death, with the exception of the Abbey and estate of Culross,” and certain other lands specified, “subject to the entail or entails thereof, to be executed by me subsequent to the date hereof, in favour of myself and the heirs whatsoever of my body; whom failing, in favour of Dame Anne Preston Campbell or Baird, my niece, eldest daughter of my brother, Patrick Preston, &c. and the heirs of her body; whom failing, Catherine Preston, my niece, youngest daughter of the said Patrick Preston, and the heirs of her body; whom failing, Dame Anne Preston or Hay, my niece, daughter of my brother, Colonel George Preston, and wife of Sir John Hay of Smithfield and Haystoun, Bart., and the heirs of her body; whom failing, Charles Dash wood Bruce, &c.;” whom failing, other heirs-substitute; “whom all failing, my own nearest heirs whatsoever, or assignees, and subject to all the provisions, declarations, reservations, limitations, burdens, clauses prohibitory, irritant, and resolutive, powers, and faculties, to be contained in such deed or deeds of entail, which deed or deeds of entail shall be held and taken to be a part hereof; and I not only reserve power and liberty to execute such deed or deeds of entail, any tiling herein contained to the contrary notwithstanding, but I direct and appoint my trustees, in the event of my failing, to grant and execute such deed or deeds of entail of my fee-simple lands and heritages, excepting as aforesaid, or that such entails shall be liable to any exception or nullity on any ground whatever, to settle and entail the said lands and heritages to and upon the persons or heirs of entail herein before-mentioned, and under all the requisite provisions, declarations, reservations, limitations, burdens, clauses prohibitory, irritant, and resolutive, powers, and faculties i of the strictest entail. In the 2d place, that my trustees shall hold the said Abbey and estate of Culross,” and the other lands excepted from the first branch of the trust-purposes, “subject to the other entail or entails thereof, to be executed by me subsequent to the date hereof, in favour of myself and the heirs whatsoever of my body; whom failing, in favour of the said Dame Anne Preston Campbell or Baird, for her life; whom failing, in favour of the said Catherine Preston, for her life; whom failing, in favour of the said Dame Anne Preston or Hay, for her life; whom failing, in favour of the said Charles Dashwood Bruce, and the heirs-male of his body; whom failing, to other substitute-heirs;” whom failing, to the truster's heirs whatsoever, subject to all the provisions, conditions, &c., “to be contained in such other deed or deeds of entail, which deed or deeds of entail shall be taken to be a part hereof.” The deed then reserved power to the truster to execute such entails, and if he failed to do so, or if the entail was liable to exception, it enjoined the trustees to execute a strict entail on the heirs last above-mentioned, in the same terms as those which have been quoted as to the Spencerfield entail. The trust-deed then proceeded:—“All which deed or deeds of entail to be executed by me, or by my said trustees, I appoint my said trustees, as soon after my death as may be, to obtain to be recorded in the register of entails, and to make up and complete all necessary feudal titles to the lands and heritages included therein, so that the said entails may be rendered effectual in law, and for the expense of which proceedings they shall have credit in accounting for my trust means and estate: But declaring, that any entails of the said lands and others, whether executed by myself or my trustees, or titles completed thereto in the persons of any of my said heirs, shall not interfere with, or come in competition with, the ends and purposes declared in the present trust, of and concerning my said fee-simple lands and heritages during the survivance of my said three nieces first called to the succession thereof, but said entails shall, during the lives of my said three nieces, and survivors and survivor of them, continue suspended and in abeyance, so far as regards the rents and produce of my said lands and estates, which shall be received and applied by my trustees in the manner after declared.” The 3d trust-purpose was then declared to be that the trustees should sell the heritage, generally conveyed to them, and “convert into money the whole of my said personal estate, wherever situated, as shall be necessary and proper, and to their discretion shall seem meet, excepting in so far as the said general direction and appointment to sell and dispose of the whole of my said real and personal estate is limited and restricted by the preceding instructions to my said trustees to entail, and also by what is hereinafter specially contained.” The trustees were directed, 4thly, after paying debts and legacies, to “invest, from time to time, the remaining price or proceeds to arise by sale of my real and personal estate, as aforesaid, in the public funds, or in real security in England or Scotland, as they may think best.” 5thly and 6thly. The trustees were directed to pay legacies and annuities of a large amount. 7thly. They were directed to remove certain furniture from Valleyfield House to Culross Abbey, and to place there such plate as the truster should insert in an inventory, failing which, such plate as the trustees, “according to their own discretion,” should set apart for the use of the Abbey, and cause to be removed thither. As to the furniture and effects already in the Abbey, it was directed that it should be possessed by the heirs in the entail of the Abbey, under all the provisions and conditions of the entail, and the truster appointed his “trustees and executors to see the said destination and entail of said furniture and effects duly enforced.” The trustees were to allow the use of the furniture at Valley-field, on certain conditions, to each of the truster's three nieces, successively, for her life, beginning with Lady Baird Preston, and, after the death of the last surviving niece, they were to sell that furniture and hold the proceeds as part of the trust-estate. 8thly. The trustees were directed “to hold the said Abbey and estate of Culross, and other lands belonging to me within the parish of Culross, and to be contained in the foresaid entail or entails, as a residence and possession common to my said three nieces, and to the said Sir John Hay, during their several lives, hereby conferring on all of them jointly the right to live at and manage the said Abbey and estate according to their pleasure, but without prejudice to feudal titles being completed thereto, under the said entail or entails, in the persons of my said nieces, or other heirs of entail, in succession, as formerly directed.” The truster also, in order to render the Abbey a comfortable residence, directed his trustees to hold a sum of £10,000, “at the pleasure of my said three nieces and the said Sir John Hay, and the survivor of them to be laid out in improvements on the said Abbey,” &c. 9thly, The trustess were directed “to pay and apply the free yearly produce of the rest, residue, and remainder of my whole means and estate, heritable and moveable, including the yearly rents and produce of all the lands and heritages to be entailed as aforesaid (excepting the said Abbey and lands within the parish of Culross), in manner following, that is to say, ray said trustees shall, once every year, upon any day to be fixed by themselves, make up and state an account of the whole yearly rents, dividends, interest, and profits, of my lands (excepting as aforesaid), stocks, property, and effects, heritable and moveable, and after deducting therefrom the whole annual outgoings of every description, including the payments of annuities and others, contained in my settlements, already made or to be made, shall divide the balance into three equal parts, and shall pay over the same annually, as soon after the date of making up said account as may be, as follows, viz.; One-third thereof to my said niece, Lady Baird, one-third thereof to my said niece, Catherine Preston, and the remaining third thereof to my said niece, Lady Hay, and the said Sir John Hay, and the survivor of them, and that during the joint lives of the said Lady Baird, Catherine Preston, and of the said Sir John Hay, or Lady Hay, it being ray will and intention to confer on the said Sir I John Hay, during his survivance of the said Dame Anne Hay, his wife, the same right and interest in my succession, heritable and moveable, I have conferred on his wife.” The deed then provided, that, on the death of any of the truster's nieces, her share should accrue to the survivors, or survivor, providing always that, if Sir John Hay survived Lady Hay, he should receive the interest which would have been received by her if alive. The deed then proceeded, “and in order that effect may be given to this direction and appointment, I hereby appoint and declare, that the entail or entails to be granted by me or my trustees, as aforesaid, in favour of my said nieces, seriatim, shall stand suspended during their lives, except only that my said nieces in succession shall be allowed to exercise all rights of patronage which may belong to the said estates, and also to enter the vassals and feuars, for which purpose it shall be competent to my trustees, immediately after ray death, to apply for the recording of all deeds of entail executed by me, and to complete, at the expense of the trust-estate, proper feudal titles under the same to the lands and estates belonging to me in the persons of my said three nieces, according to their order of succession; but declaring that, notwithstanding the completion of such feudal titles in the persons of my nieces in succession, the whole rents and produce, and casualties of superiority shall be receivable by my trustees, for the purposes above expressed.” 10thly. The trustees were directed, immediately after the death of the last survivor of the truster's nieces and Sir John Hay, to invest the residue of the truster's estate, real and personal, in the purchase of lands in Scotland, and to entail these on the heirs of entail of Spencerfield, &c.; to record such entails, and to complete feudal titles to the entailed lands in the person of the heir of entail, and “on such steps being taken as are necessary to render the said entails valid in law, and the prior purposes of the present trust being duly accomplished, the heir entitled to succeed shall be thereupon let into possession of the rents and produce of my whole lands and estates, as well of those which may be entailed by myself, as of those which shall be settled and entailed by my said trustees, and this trust shall then be considered as at an end.”

The trust-deed gave power to the “trustees, or trustee, acting for the time, to assume, and by a writing under their or his hands or hand, to nominate and appoint any other person or persons to be a trustee or trustees along with them for the purposes aforesaid, and such trustee or trustees so assumed, &c., shall have the same powers and privileges, and be subject to the same conditions with the aforesaid original trustees.” The deed then declared the trustees “whether original or assumed” to be not liable for factors, &c., if habite and repute responsible when appointed; nor for “neglects or omissions of any kind in the execution of the trust, nor for the insolvency of debtors or others with whom they may transact, nor shall they be liable singuli in solidum, but each only for his own personal acts, deeds, and receipts,” The deed revoked all former wills, and reserved full power of alteration, but dispensed with delivery.

On November 3, 1832, Sir Robert Preston executed an entail of the lands of Spencerfield, &c., whereby he granted and disponed, “as I do hereby, agreeably to and in terms of my trust-disposition and deed of settlement, dated the 17th day of October in the present year, 1832, and with and under the conditions, provisions, &c., after specified, give, grant, and dispone to and in favour of myself and the heirs of my body; whom failing” to Lady Baird Preston and the other heirs substitute mentioned in the 1st trust-purpose of the trust-disposition above quoted. Sir Robert bound himself and his heirs to infeft the institute and heirs of entail, but under the conditions, provisions, &c., “herein-after inserted.” It was declared that “the whole heirs and substitutes aforesaid shall be obliged to possess, hold, and enjoy the same upon this present deed of entail, and the titles to be made up pursuant thereto, and by or upon no other title whatsoever.” It was also provided “that the several heirs of tailzie and substitutes above specified, upon the succession opening to them, severally and respectively shall be obliged to procure and obtain themselves entered infeft and seised in the said lands, estates, and others without delay, at any rate within two years after they have an opportunity so to do.” It was declared “that these presents shall stand good and continue effectual and obligatory not only as to the lands and others foresaid, whereto a sufficient title shall be made up and completed in my person before my decease, but also to compel my heirs-at-law and other heirs to complete and make up titles in their persons to any part of the said lands and others to which I shall not have completed and established my own titles, and then to resign the same in the hands of the respective superiors thereof in favour of the heirs of taillie herein-before specified, with and under the whole conditions, provisions, restrictions, limitations, exceptions, clauses irritant and resolutive, and reservations before written.” The deed purported to be granted under reservation of the granter's liferent, and power to alter, but dispensing with delivery. The deed also empowered the granter's procurator or any heir of entail to cause record the entail, and expede charters, &c., in favour of the heirs of entail. The deed contained a precept for infefting the granter and heirs of entail under the conditions, provisions, &c. “before written.”

On the same day, November 3, 1832, Sir Robert Preston executed an entail of the Abbey and estate of Culross, on the same heirs which were pointed out in the trust-deed for that estate. This entail was similar to that of Spencerfield in all respects, and in particular, it made the same reference in the dispositive clause to the trust-deed which was made in the Spencerfield entail; and it did not make reference to the trust afterwards.

On April 15, 1833, Sir Robert Preston executed a probative writing, setting forth his desire that the Abbey should be called, after the name of his deceased wife, Abbey Elizabeth, declaring that this name should be inserted by the heirs of entail in all retours, charters, &c., under pain of forfeiture of the estate, and that this writing should be held part of the entail and recorded along with it; and adding, “I further authorize and require my trustees to make and enforce all other more formal deeds or clauses to give authority and effect to my declared intentions of perpetuating the said name and designation.”

On April 17, 1833, Sir Robert executed another probative writing, narrating that Charles Dashwood Bruce, the first heir called after the death of his three nieces, was engaged in trade, and therefore exposed to the risk of reverses; that Sir Robert wished to guard against the probability of the estates ever passing under the control of creditors; and, therefore, directing the trustees “to hold and possess the whole lands and heritages already settled and entailed by me, or which I have appointed to be settled and entailed by my trustees, and to draw the whole rents and produce thereof, till such time as the said Charles Dashwood Bruce shall establish, to the satisfaction of my said trustees, that he is relieved from business, and from all debts and engagements attendant on his having been engaged in business.” The trustees, in the interim, were only to pay to him the “rents and produce as an alimentary allowance,” and it was declared “that my entails shall, during the space foresaid, stand suspended in the same manner as I have appointed during the lives of my said nieces.” On the same day Sir Robert signed a duplicate of the trust-deed, without varying it in any respect. In December, 1833, he postponed Charles Dashwood Bruce in the order of succession. In other respects the trust-deed and entails remained unaltered, except as to certain legacies, at the date of Sir Robert's death, which happened at Valleyfied in Scotland, on May 7th, 1834. He left not only large heritable estates in Scotland, but also a great amount of personal property, situated partly in Scotland and partly in England.

The whole trustees named by Sir Robert refused to accept. Lady Baird Preston, the first heir called under the two entails, then expede a service as heir of entail, and was infeft. She also took out letters of administration in England, for uplifting the moveable succession there, and Sir John Hay and Miss Preston became her sureties. And she expede confirmation in Scotland as executor, qua next of kin. Lady Hay, who was both heir of line and of conquest to Sir Robert Preston, made up titles to a heritable bond for £10,000, in which he had died infeft. These steps were taken with concurrence of the other parties interested in the succession. The two entails were recorded on May 20, 1834, and Feb. 14, 1835.

In July, 1834, a petition was presented to the Court of Session by Charles Dashwood Bruce, and two other parties interested in the heritable or moveable estate left by Sir Robert Preston, setting forth the trust-settlement and the declinature of the trustees; and subsuming that as the deceased was a domiciled Scotchman, his whole moveable estate was subject to the laws of Scotland; and, therefore, praying the Court to appoint a trustee for the purpose of executing the trust-settlement.

In January, 1835, another petition was presented by Sir John and Lady Hay, praying the Court to appoint Viscount Melville, John James Hope Johnstone of Annandale, and Adam Hay, banker in Edinburgh, and the survivors or survivor, to be trustees for executing the trust-disposition and settlement, in the room of the trustees named in the deed; and also praying the Court to ordain Lady Baird Preston and Lady Hay, being respectively executrix qua nearest in kin and heir-at-law of Sir Robert, to execute such conveyances of the trust property vested in them, in favour of the trustees so to be named, as would vest the whole estate, real and personal, in the trustees, and enable them to carry the trust into full execution.

Answers were lodged to these petitions for Lady Baird Preston and Miss Preston. An arrangement was afterwards made, in terms of which a joint minute was lodged for Sir John and Lady Hay, Lady Baird Preston and Miss Preston, and Charles Dashwood Bruce and one of his co-petitioners, the other being now out of the field. The minute set forth that the petition of Sir John and Lady Hay had been presented, praying the Court, “with consent of all parties interested, to appoint the said Viscount Melville, John James Hope Johnstone, and Adam Hay, and the survivors and survivor of them, to be trustees for executing the different powers and provisions contained in the trust-disposition and settlement therein mentioned, executed by the deceased Sir Robert Preston, and that in room of Sir Coutts Trotter, Bart., Edward Marjoribanks, Esq., and Sir Edmund Antrobus, Bart., trustees nominated by the said Sir Robert Preston, who declined to accept of the said trust,” or otherwise to appoint a judicial factor; which petition was followed by answers for Lady Baird Preston and Miss Preston, but farther consideration was, of this date, ¹ superseded of consent. The minute further bore—“That the whole parties are now agreed to concur in the prayer of the said petition for the nomination of the parties above named to be trustees for executing the trust created by the said Sir Robert Preston, and therefore now moved your Lordships to grant the prayer of the said petition to that extent.”

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¹ Feb. 20, 1835

To this minute there was subjoined an express consent “to what is above craved,” which was signed by the counsel for Lady Baird Preston, and Miss Preston. A similar consent by the other parties was also subjoined.

The Court then pronounced an interlocutor, which, after narrating the petitions, answers, and minute, proceeded:—“And further, of consent, and as craved in the said minute, nominate and appoint the said Viscount Melville, John James Hope Johnstone, and Adam Hay, and the survivors and survivor of them, to be trustees for executing the different powers and carrying into effect the provisions contained in the trust-disposition and deed of settlement and will, dated 17th day of April, 1833, executed by the deceased Sir Robert Preston of Valleyfield, Bart, and codicils thereto, referred to in said petition, and that in room and place of the trustees named by the said Sir Robert Preston who have declined to accept, and with all the powers and faculties conferred upon the said original trustees by the said trust-deed, and decern: and grant warrant for extracting an act and decreet accordingly in usual form, upon caution being found, before extract.”

Caution was found for the trustees so named, and, in particular, Lady Baird Preston became one of the cautioners for the said John James Hope Johnstone. This bond of caution proceeded upon the narrative, that “I, the said John James Hope Johnstone, having consented to accept of the said nomination of trustee, in terms of, and under the provisions, and upon the footing expressed in the said deed of settlement of the said Sir Robert Preston, Baronet, deceased, and under the conditions as if I had been one of the trustees nominated by the said settlement allenarly, and that it is proper that I should find caution for my due discharge of the duty of trustee, as aforesaid, to act in the same manner and in all respects as if I had been one of the trustees originally nominated in the foresaid trust-deed and settlement, and no otherways,—Therefore I, the said John James Hope Johnstone, as principal, and Dame Anne Campbell Baird Preston of Fernton, Lochland, and Valleyfield, and Miss Catherine Preston, sister of the said Dame Anne Campbell Baird Preston, as cautioners, sureties, and full debtors for and with me, do hereby enact, bind, and oblige ourselves, conjunctly and severally, our heirs, executors, and successors whomsoever, that I, the said John James Hope Johnstone, shall duly, lawfully, and truly execute the office of trustee,” &c., “and with all the powers and penalties, and with the whole privileges and immunities conferred upon the said originally named trustees.”

Under the above arrangement, Lady Hay conveyed to the trustees the heritable bond for £10,000, to which she had made up titles.

The trustees desired to obtain themselves fully vested in the whole heritage of Sir Robert, including the two entailed estates, and also in the whole moveable estate, considering that this was the most effectual method of executing the trust, and that the effect of the two entails stood suspended until the execution of the trust. The trustees, therefore, raised a summons of declarator and constitution against Lady Hay, setting forth the several deeds executed by Sir Robert, and the proceedings under which they had been appointed trustees; that they had right to complete titles to the whole heritable estate, so as to enable them to carry into full effect the purposes of the trust; that no special conveyance of any of the heritage existed in the trust-disposition, and they had therefore raised letters of general charge against Lady Hay as heiress of line, and of conquest, of Sir Robert, and charged her to enter heir; and that they had required Lady Hay to convey to them the heritable estate. The summons concluded for declarator, “that the whole rights, powers, faculties, privileges, and immunities vested in and bestowed by the before-recited trust-disposition, deed of settlement, and will, in and upon the persons therein named as trustees, are now vested in and bestowed upon the pursuers, as trustees nominated and appointed by our said Lords, in room and place of the said Sir Coutts Trotter, Edward Marjoribanks, and Sir Edmund Antrobus, and that the pursuers have in consequence full power and right to make up and complete regular and valid titles in due form of law to the whole of the lands and other heritable estate disponed by the said Sir Robert Preston by the deed before-recited, and to obtain themselves duly vest and seized therein, so as they may be enabled to carry into full and proper effect the various trusts and purposes declared of and concerning the said lands and others, and may maintain their rights and titles, as trust-disponees aforesaid, independently of acts, consent, interference, or concurrence of all or any of the parties interested in the subjects of the said trust-deed, on a full and complete feudal title in the lands disponed in trust, as aforesaid; and, if necessary, to adjudge in implement of the said trust-disposition, deed of settlement, and will:” Farther, that Lady Hay should be ordained to make up a title to the whole heritage left by Sir Robert, including the Spencerfield and Culross estates, and to obtain “the full, heritable, and irredeemable right thereof established in her person,” and to convey the said lands and heritage “to the pursuers, and to the survivors or survivor of them, as trustees foresaid, and to their successors in office, for the uses, ends, and purposes specified, in the foresaid trust-disposition:”—“in order that the full and complete right of the same may be properly vested in the persons of the pursuers, as trustees foresaid, and their foresaids, according to the true intent and meaning of the said trust-disposition, deed of settlement, and will, and without prejudice to any right or interest which may belong to the said defenders or others in the said lands and estate, or the administration thereof, after being so vested in the pursuers, as trustees foresaid.” Lady Baird Preston, and Miss Preston, were called as defenders, for their respective interests.

Defences were lodged by Lady Baird Preston alone, who offered to convey the rents and produce of the entailed estates in which she was infeft, to the trustees for the trust-purposes, but who maintained that, as to these estates the trustees could not make up a title in their persons. In support of this she pleaded, 1st, That even if the pursuers possessed the whole powers which the original trustees would have had, if they had accepted, they would not have been authorized to make up a feudal title to the entailed estates. The trust-disposition contemplated alternatively that Sir Robert might himself execute the entails, or might devolve that duty on the trustees. And it was only in the latter event that he intended them to make up titles to the estates to be entailed. Accordingly, he had inserted no procuratory or precept in the trust-disposition; and as he had himself executed the entails, with procuratory and precept in favour of the institute and heirs of entail, the defender had merely fulfilled his intention in making up a feudal title to the entailed estates. This was the more apparent, as Sir Robert had enjoined his own trustees, even as to entails which might be executed by them, to complete a feudal title in the person of the heir, so that the heir might enter vassals, during the subsistence of the trust. It was true that the rents and produce of the estate, and the casualties of superiority were to belong to the trustees, during the trust, and the defender was ready to convey these to them, in the most effectual manner. But there was no suspension of the entails to any other effect. There was thus no ground whatever on which Sir Robert's own trustees would have required to make up titles to the entailed property even if they had accepted.—2d, The pursuers did not possess the powers which would have belonged to the original trustees if they had accepted; and the single fact that they had been obliged to find caution as a condition of their appointment, demonstrated that they were not, and could not be, placed by the Court, in pari casu, with the original trustees. The trust-deed conferred discretionary powers of various kinds. It gave to the trustees, and the survivor, the power of assuming new trustees. It exempted the trustees, original or assumed, from all liability for neglects and omissions, besides other risks. The parties on whom these and other powers and privileges were conferred, refused to accept; the truster had conferred them on no other party, and they could be derived from the truster alone. It was ultra vires of the Court to appoint other parties with the same powers, or even to appoint trustees at all; and the consent of parties, had it been given, would not have cured this defect of power in the Court. But as the interests of the whole heirs of entail, and others, were concern-ed, no consent had been given, which could affect them; and if no valid consent had been given, it was competent to the defender to state this objection, especially as (she alleged) she had never intended to give a consent so broad, and the minute lodged in Court did not go so far. Besides, it was pars judicis to enforce this objection, independently of the consent of parties. ¹—3d, As the defender was feudally infeft in the lands falling under the entails, and her infeftment was not liable to reduction, it was no longer competent to ordain Sir Robert's heir-at-law to make up titles to him, or on failure thereof, to adjudge in implement, whatever might have been Sir Robert Preston's intention, as to the respective force of the entail and the trust-right. ² Sir Robert by his deeds of entail, conveyed the entire fee to the institute and heirs of entail. Though the succession was tailzied, and strictly fenced, still the whole fee of the estate was so conveyed by that deed. The defender served heir of entail, took up the estate, and was infeft; after which there was nothing in the here-ditas jacens of Sir Robert, which his heir-at-law could take by service, or which the pursuers could adjudge in implement, if they should ever bring a process of such adjudication. ³ 4th, If it were at all competent for the pursuers to obtain any of the objects sought for in this summons, they, being officers appointed by the Court, and substantially mere judicial factors, ought to have applied by summary petition to the Court, as was the practice with factors loco tutoris, and others, when craving authority to make up titles or otherwise. The action of declarator and constitution was irregular, and could not be sustained.

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¹ Dick, January 22, 1758 (7446); Wotherspoon, &c., December 15, 1775 (7450); Macdowall, November 20, 1789 (7453); Paton, July 24, 1785 (4071); Grant, &c., February 13, 1790 (7454); Marjoribanks, &c., February 27, 1822 (ante, I. 355; or new ed. 333); Moir, &c., July 6, 1826 (ante, IV., 801; or new ed. 808); Ireland and Son, May 18, 1833 (ante, XI, 626); Davidson, July 9, 1835 (ante, XIII., 1082.)

² Fergusson, March 5, 1823, I. Sh. App. 394; Henderson, May 29, 1802 (15444); and App. v. Tailzie, No. 3.

³ Renton, Dec. 20, 1833 (ante, XII., 266.)

The pursuers, who offered to ratify the actings of Lady Baird Preston, pleaded, 1. The original trustees, if they had accepted, could have made up a title to the whole heritage including the entailed estates. The trust-deed expressly conveyed the whole heritage to them, merely declaring that they were to hold it, subject to the entails, whether executed by Sir Robert, or by the trustees. The trust-deed did not contain procuratory or precept, but it imposed an express obligation on Sir Robert's heirs to make up titles and convey to the trustees, who were surrogated specially in the room of Sir Robert himself. It also declared that not only the rents and produce of the entailed estates, but also the whole casualties of superiority should “be receivable by my trustees for the purposes above expressed,” notwithstanding the feudalising of the entail in the person of the first heir. And it expressly provided that “the entails to be granted by me, or my trustees, in favour of my said nieces seriatim shall stand suspended,” except as to exercising rights of patronage, and the entering of vassals. It was also declared in the trust that the entails, when executed, should be “held and taken to be a part thereof.” Accordingly, after Sir Robert had executed both entails, he anew in April 1833 executed the trust-disposition, in duplicate, by which he conveyed his whole heritage, including the entailed estates, to his trustees, and showed that the entails were not, in any respect, to supersede the trust. And he also, of the same date, declared that the entails should stand suspended in reference to Charles Dashwood Bruce, one of the substitute heirs, for a longer period than was formerly provided. Besides which he subsequently directed his trustees to cause an addition to be made to one of the entails, so as to make it a condition, duly fenced, that the heirs of entail should use the name of Abbey Elizabeth in their re-tours, &c. The effect of this provision not only proved it to be Sir Robert's intention that his trustees should be feudally vested in the entailed lands as well as the rest, but rendered it necessary for them to be so, to carry this provision into effect, if any opposition was made to it. And when it was farther considered that the trustees were enjoined “to hold the Abbey and estate of Culross,” and other lands falling under one of the entails, for the joint behoof of Sir Robert's three nieces and Sir John Hay, during their lives, it was evident that, during the subsistence of the trust, the right of the trustees was to be in all respects complete, though burdened with the entails, which were, mean-while, in abeyance, except to certain limited effects. 2. By the interlocutor of the Court, and with consent of the defender, the pursuers were appointed with the whole powers and privileges of the original trustees. How far that consent might affect others, it was unnecessary to inquire: but the defender, at least, was barred by personal exception from objecting that the pursuers had not those full powers, to which she agreed when they were induced to accept of the trust. And by becoming cautioner for one of the pursuers, in a bond expressly narrating that he was to enjoy the whole powers and privileges of the original trustees, the defender had deliberately homologated the appointment by the Court. Sir Robert Preston thought these powers and privileges necessary and proper for his trustees; and as the pursuers had the same duties to fulfil, they were only induced to undertake the office, on condition of having the same powers and privileges, and the defender could not now object to their exercising them. ¹ As to some of the more extraordinary privileges conferred by the trustee, none of these were involved in the present question. 3. There was no feudal impediment to the completion of the pursuer's title. The conveyance to the pursuers was by a disposition, not in property, but in trust. Had the pursuers first taken infeftment under their trust-conveyance, and then executed the entails, and made up a feudal title in Lady

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¹ Campbell, June 20, 1752 (7410); Moir, July 0, 1826 (ante, IV., 801; or new ed. 808).

Baird Preston, the entail would just have been a burden on the trust-right. And that was the shape which Sir Robert intended the trust-right and the entail respectively to possess, and which, under his deeds, they did possess. The whole lands were conveyed to the pursuers in trust, but subject to the burden of the entails, which were to be, to almost all effects, in abeyance during the trust. Although, therefore, the defender had made up a feudal title as heir of entail, it was only to an estate which was a mere burden on the radical right of the pursuers, during the subsistence of the trust; and therefore it did not present any impediment to the pursuers taking up their radical right in the lands, in common form. When they had done so, there would not be two co-ordinate fees, co-existing in one and the same estate, but merely two fees of a different sort from each other, which might co-exist as competently as an infeftment in property, and an infeftment in trust or in security, affecting the same lands. 4. The pursuers were not mere officers of court, but trustees of Sir Robert Preston, and by the extract of their act of appointment they ceased to be in Court at all. It would have been incompetent, therefore, for them to apply by summary petition, with a prayer in terms of the conclusions of the summons. Besides, they did not seek any enlargement of their powers, or any alteration on their appointment, which was the occasion of summary petitions being presented to the Court, in the instances referred to by the defender. The pursuers merely sought to enforce against an heir at law, the declarator of an obligation to make up titles and convey the heritage of an ancestor to them; and they had taken the proper course to do so by this action of declarator and constitution.

The Lord Ordinary reported the cause on cases.