Scottish Court of Session Decisions

This is a question between Mr Gordon of Cluny and the trustees of his father, the late Colonel Gordon, and it arises out of the two following clauses in a disposition and deed of trust-settlement, executed by Colonel Gordon on the 28th of May 1853.

The third purpose of that deed is expressed as follows:—“After the said trustees shall have completed a title in their persons to the whole lands and estates belonging to me in Scotland, I hereby direct and appoint them to execute a deed or deeds of strict entail, in terms of the Act of Parliament of Scotland passed in the year 1865, intituled ‘Act concerning tailzies,’ of the whole lands and estates situated in Scotland, now belonging, or which shall belong to me at the time of my death (with the exceptions of the estates of South Uist, Benbecula, and Barra, and other lands now belonging to me in the county of Inverness, hereafter specially destined), and that to and in favour of my eldest son, the said John Gordon, now Captain John Gordon, and his heirs whatsoever: whom failing, to and in favour of my youngest son, the said Charles Gordon, and his heirs whatsoever: whom failing, to any persons to be named in any deed of nomination to be afterwards executed by me at any time of my life; the eldest heir-female, and the descendants of her body, excluding heirs portioners, and succeeding always without division through the whole course of the female succession, and failing such nomination, or of the persons so to be named, and their heirs whatsoever, then to my own heirs whatsoever and their assignees,” &c., &c. The sixth purpose of the trust-deed disposes of the

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residue in the following terms:—“After accomplishing all the other purposes of this trust, the said trustees are hereby directed to lay out and invest the whole residue that may remain of my heritable and personal estates in the purchase of lands and heritages situated as near and convenient as they can be reasonably had to my said estate of Cluny and my other principal estates, and to execute a deed or deeds of strict entail, in terms of the foresaid Act of the Parliament of Scotland passed in the year 1685, intituled ‘Act concerning tailzies of the whole of the foresaid lands so to be purchased as aforesaid, to and in favour of my eldest son, John Gordon,’ &c.” (Here follows a destination in the same terms as that in the third purpose of the trust; and there is a provision that the trustees shall record the deed so executed by them in the Register of Tailzies, and also in the Books of Council and Session, and complete proper feudal titles thereon, so as to render them effectual in terms of law.) Charles Gordon, the youngest son of the truster, predeceased his father unmarried, and without leaving any heirs, and the truster died without having executed any deed of nomination naming any persons as heirs of entail in whose favour the said disposition and deed of entail was to be conceived. In consequence of this predecease and the failure of the truster to nominate any other heirs, the landed estates in Scotland of the truster having devolved on the pursuer, Mr Gordon, the trustees proceeded, in implement of the directions of the trust-deed, to execute a deed of entail according to the destination expressed in the trust-deed. The residue realised by the defenders amounted to £251,598, 15s. 4d., out of which the truster's debts were paid and some landed property was bought, but a large balance is still in the hands of the trustees.

There is no question in regard to the third clause of the trust-deed per se. The dispute is as to the effects of the sixth. On the one hand, Mr Gordon maintains, on the authority of the Dalswinton case, that the destination to John Gordon and his heirs whatsoever cannot be made the foundation of a good entail, and therefore it is a fee-simple destination. The trustees, on the other hand, maintain that they are bound to give effect to the directions of the trust-deed, and that they are entitled to cure the defect in the destination by reading the destination to John Gordon and his heirs whatsoever as a destination to John Gordon and the heirs of his body. On the suggestion of the Court, it was pleaded alternatively for the trustees, that if the destination of the trust-deed was not valid to make a good entail, it is valid to defeat the interest in his father's succession, to which Mr Gordon lays claim, and that quoad the residue Colonel Gordon must be held to have died intestate.

To-day the Court made avizandum.