Scottish Court of Session Decisions

The late Archibald Campbell, by holograph deed of settlement, conveyed all his property to trustees for certain purposes, of which the last was thus expressed:—“That my said trustees shall pay over the whole free residue and remainder of my means and estate, above disponed, to Alexander Campbell, my son, and his heirs, executors, and successors, hereby declaring my will to be, that my said trustees shall entail the whole amount on the heirs-male of the said Alexander Campbell; whom failing, on the heirs-male of my late brother, Duncan Campbell; whom failing, on the heirs-male of my late sister, Jean; whom failing, on the heirs-male of my niece, Mary, now Mrs Paterson.”

For the determination of certain questions arising as to the construction of this settlement, the trustees raised a multiplepoinding, in which the Court (May 17, 1836) found, inter alia, that, in the entail to be executed by the trustees, the fetters fell to be imposed on the institute (the claimant, Alexander Campbell), as well as on the substitutes called after him. ¹ The Lord Ordinary thereafter remitted to Mr Roger Aytoun, W.S., to revise a draft deed of entail of certain lands which had been purchased by the trustees. In regard to the destination in the deed, Mr Aytoun reported his opinion, 1st, That by “heirs-male,” as used by the testator, must be held to have been intended “heirs-male of the body” of the several persons called to the succession, and that it ought to be so expressed in the deed; and, 2d, That after the substitutes expressly called, there ought to be inserted a concluding ultimate destination “to and in favour of the nearest heirs and assignees whatsoever of the said Alexander Campbell, the institute.” The claimant, James Archibald Campbell, who was the substitute heir next entitled to take after the institute, objected, before the Lord Ordinary, to the insertion of this concluding destination proposed by Mr Aytoun, on the ground that there was no warrant for it in the deed of the testator, which, in setting forth the specific destination given by him as explanatory of the general terms first used, “Alexander Campbell, his heirs, executors, and successors,” stopped at the heirs-male of Mrs Paterson without any ultimate destination, leaving matters thereafter to be regulated by the ordinary rules of law.

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¹ Ante, XIV. 770.

To this it was answered for the institute:—The intention of the testator must form the rule in framing the destination. It cannot be presumed that it was his intention to prefer ultimately the heirs-general of the last substitute to the heirs of his son, the persona predilecta, including the heirs-female of his son's body; nor is there any evidence of such intention. On the contrary, in the commencing and leading portion of the destination, he provides that the residue of his estate shall be made over to his son, Alexander Campbell, “and his heirs, executors, and successors.” He then proceeds to declare his will, that it shall be entailed on the “heirs-male” of Alexander Campbell—not mentioning Alexander Campbell himself—whom failing, on the other substitutes named. This part of the clause cannot be held as explanatory of the first part of it, and as more particularly defining the whole parties there intended, because Alexander Campbell himself is omitted. It has already been found, however, that the fetters of the entail are to be applied to him, so that the first clause, in which he is mentioned, is necessarily part of the intended destination of the entail. But this first clause is not limited to Alexander Campbell. It includes his “heirs and successors”—the term “executors,” ignorantly used by a non-professional man writing his own will, only marking more clearly his intention to embrace the general representatives of his son. This destination is no doubt qualified by the subsequent interposed destinations; but these constitute properly a qualification, and not an explanation of the antecedent general destination, leaving that general destination to stand as the ultimate destination of the entail, on the failure of the third parties specially called in the interposed and qualifying destination.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“The Lord Ordinary having heard the counsel for the parties on the draft-deed of entail in process, and the report of Mr R. Ayton, W.S. thereon, and made avizandum,—Finds, primo, That the heirs-male, to be called to the succession by the proposed entail, must be therein described as the heirs-male of the bodies of their several ancestors, and not as their heirs-male general; And Finds, secundo, That the order of succession, to be specified in the said entail, should terminate with the heirs-male of the body of the truster's niece, Mary, wife of Paterson, without any ultimate destination to the heirs whatsoever, either of the truster himself, or of the institute, or of the last heir-male in possession: And before further answer, directs the cause to be enrolled, that parties may state whether they are agreed as to the other points referred to in Mr Ayton's report.”

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* “The second point here decided was the only one seriously contested by the institute. He insisted that the general introductory instructions to the trustees to ‘pay over’ the residue to him, ‘his heirs, executors, and successors,' should not be held pro non scripto, but should still be admitted to all the effect that can be given it, consistently with the subsequent rather contradictory direction to entail the whole amount on his heirs-male and certain other persons; and he contended that such effect might properly be given by inserting an ultimate destination to his, the institute's, heirs and assignees whatsoever. It may not be very easy to reconcile these two leading directions of the trust-deed. But the Lord Ordinary apprehends, that if they cannot be reconciled, the latter must govern, and be held as superseding the former. The first destination to executors is, at all events, superseded by the explicit direction to turn the whole into land; and that word being held pro non scripto, the two directions may be reconciled without much violence, by supposing the second to be a mere specification and more precise announcement of what was truly meant by the former; as if he had said, ‘my meaning in Baying that it shall all be made over to him, and his heirs and successors, being, that it shall be invested in land, and entailed upon him and the heirs-male of his body, in the first place, and afterwards on certain other persons.’ In this way the trustees will still have to make or pay over the whole subject directly to the institute himself, in fee, in terms of the first direction, and all the other persons called, the stranger substitutes, as well as the heirs of his body, will necessarily take as his heirs and successors,—so as still farther to satisfy that leading direction.

“Now that there is no necessity for excluding the claims of the sovereign, as ultimus hæres, there seems no occasion for an ultimate destination, to the heirs general of any body, and as such heirs could never be placed in obligatione, or so called as to have any jus crediti, it appears better to the Lord Ordinary that the destination should stop where the instructions of the truster stop, which would leave the fee simple succession, where it is thought it would be most justly left,—to the heirs whatsoever of the last special substitute. When these findings are final, it is understood that the parties will agree as to all the other clauses and conditions.”

Alexander Campbell reclaimed, in so far as regarded the omission of any ultimate destination, but