Scottish Court of Session Decisions

John, first Marquess of Breadalbane, died on 29th March 1834. He was survived by his widow, the Marchioness of Breadalbane, who died on 25th March 1845, and by three children, viz., John Viscount of Glenorchy, who became second Marquess of Breadalbane, and died 8th November 1862; Mary, Marchioness of Chandos, afterwards Duchess of Buckingham, who died 28th June 1862; and Lady Elizabeth Pringle, wife of Sir John Pringle of Newhall. On the 29th January 1823 the first Marquess of Breadalbane executed a trust-disposition and settlement of his lands and property, heritable and moveable, of every description, in favour of certain trustees. An addition of 24th October 1828 substituted other trustees for some of those nominated in the deed; and upon 11th November 1828 he executed another deed in the same terms as the former, giving effect to the changes made by the addition of 24th October in the nomination of trustees. The second disposition contained a clause declaring that it should be held as a duplicate copy of the first and of the addition, with full power to his trustees to make use of either deed as they should think fit. A codicil, dated 26th August 1829, is added to the trust-deed of 1828. His Lordship also left a holograph deed of legacies, dated 24th January 1829, with codicil, dated 30th June 1829. By a codicil of 26th August 1829 it is provided that the trustees, “instead of investing the free rents of my unentailed lands and estates in manner before-mentioned, shall annually pay over the whole free proceeds of the same to my two daughters, Lady Elizabeth Campbell, now Pringle, and Mary Marchioness of Chandos, equally between them while both shall be in life, and to the survivor, and shall continue to do the same as long as both or either of them are

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alive.” But always without prejudice to certain obligations and provisions granted in favour of Mary Countess of Breadalbane, or obligations contained in the contract of marriage between John Viscount of Glenorchy, and Eliza Baillie, his spouse.

By a deed of legacies and bequests, holograph of the said first Marquis of Breadalbane, dated 24th January 1829, he bequeathed various legacies to sundry individuals, and by an addition thereto, dated 30th June 1829, also holograph of the said first Marquess of Breadalbane, he directed his said trustees to divide the rents of his unentailed lands (after what Lady Breadalbane might be legally entitled to) equally between his two daughters, Lady Elizabeth Pringle and the Marchioness of Chandos, the survivor to receive the whole during her life, and at her death the rents to return with the lands to the heirs of entail of the Breadalbane property, as directed by his said trust-disposition.

The Marchioness of Chandos, afterwards Duchess of Buckingham, was married in 1819. Her marriage-contract contained provisions given by her father, the said first Marquess of Breadalbane, but no clause declaring these provisions to be in full of legitim.

Lady Elizabeth Pringle was married in 1831, and her claim of legitim was excluded in her marriage-contract in consideration of certain provisions by the said Marquess in her favour.

On the death of the said first Marquess of Breadalbane, his trustees entered on the possession of the trust-estate, including, inter alia, the unentailed estates and the rents thereof. Various questions having arisen in regard to the succession, the Duke and Duchess of Buckingham raised an action of multiplepoinding in name of the trustees, for the purpose of having the rights of the parties judicially ascertained.

Claims were lodged in this process for the Duke and Duchess of Buckingham, the Lady Elizabeth Pringle, the late (second) Marquis of Breadalbane, the Marchioness Dowager, and the trustees; and various questions raised were determined by the Court.

An interlocutor of 20th January 1836, pronounced by their Lordships of the Second Division, found, inter alia, 1st, That the Duchess of Buckingham was entitled to legitim, and that her claim extended over one-third part of the free moveable estate; that the second Marquess was not entitled to share in the legitim without collating his interest in the entailed estates; that the Dowager-Marchioness was entitled to a terce of the unentailed estates in which her husband died vested and seised, and to her jus relictæ extending over one-third part of the free moveable estate of her said husband; that the marriage-contract trustees of the Lady Elizabeth Pringle were entitled to the sums provided by the deceased Marquess in said contract of marriage; and that the Lady Elizabeth Pringle was entitled to “one-half of the free yearly proceeds of the unentailed land's of her said father, conveyed by him to his trustees, raisers of the process, in terms of his settlement…. and that without prejudice to any further claims on her part, either on the predecease of her sister, the Marchioness of Chandos; or in the event of its being found that the claims of the said Marchioness to the other half of the said rents could not be sustained,” on the validity and effect of which claim counsel were appointed to be heard.

This interlocutor was in part appealed to the House of Lords, and so far as appealed against was affirmed on 16th August 1836. Parties having been thereafter heard on the claim of the Marchioness (then Duchess of Buckingham) to one-half of the rents of the unentailed estates, it was held that her Grace, having insisted on her claim for legitim, was barred from availing herself of that provision of the codicil in her favour, and the said claim was repelled.

Lady Elizabeth Pringle, on the Duchess of BuckinghaM's claim being repelled, claimed right to the whole rents, under the reservation in her Ladyship's favour in the interlocutor of 20th January 1836. This was opposed by the trustees, and on the 15th January 1841 the following interlocutor was pronounced:—“Find that the interest of Lady Elizabeth Pringle on the rents of the unentailed estates is not enlarged by the forfeiture which the Duchess of Buckingham has incurred, but that such forfeiture operates during the lifetime of the Duchess of Buckingham in favour of the trustees of the late Marquis of Breadalbane; and therefore find that the Lady Elizabeth Pringle, during the lifetime of the Duchess of Buckingham, is entitled to one-half, and no more, of the yearly proceeds of the unentailed estates, after satisfying the terce.”

The second Marquess of Breadalbane left a trust-disposition and settlement, dated 26th November 1847, whereby he conveyed his whole estate to and in favour of the Earl of Dalhousie, Lord Jerviswoode, and others, as trustees for the purposes therein-mentioned. They accepted the trust, and acted for several years; but in November 1869 the survivors of the said trustees, being the Earl of Dalhousie and Lord Jerviswoode, resigned their office under the Act of 24 and 25 Vict., cap. 84, when George Auldjo Jamieson, C.A., was appointed judicial factor on the trust-estate, with the usual powers, and thereby acquired right to the whole claims competent to the said second Marquess against the trust-estate of the first Marquess.

The judicial factor claimed:—

1st. That the trustees of the first Marquess should make up and exhibit proper accounts of the income of the trust-estate from 15th May 1854 down to 8th November 1862, and that he should be ranked and preferred to the revenue of the trust-estate for the period between these dates, including the half of the rents of the unentailed lands from Whitsunday 1854 to the date of the Duchess of BuckinghaM's death in 1862.

2d. That in ascertaining the amount of the said income to which he is entitled, the annuities bequeathed and granted by the first Marquess should, for the period subsequent to Whitsunday 1854, be debited, not to the revenue, but to the capital of the trust-estate.

3d. That in ascertaining the said income there should be credited thereto the whole percentages paid by the liferenters of the unentailed lands in respect of permanent improvements, or other outlays made by the trustees thereupon as aforesaid.

Lord Mackenzie pronounced the following interlocutor:—

“ Edinburgh, 26 th March 1873.—The Lord Ordinary having heard counsel on the records closed in the competition, and with reference to the fund in medio—Finds that Mr George Auldjo Jamieson, as judicial factor on the estate of the second Marquess of Breadalbane, is not entitled to the one-half of the rents of the unentailed lands left by the truster,

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the first Marquess of Breadalbane, for the period from Whitsunday 1854 to 8th November 1862; and to that extent repels the claim of the said judicial factor: Finds that the trustees of the first Marquess of Breadalbane are bound to retain the whole of the said rents for the period between Whitsunday 1854 and 28th June 1862, the date of the Duchess of Buckingha M's death, as a surrogatum for the sums taken from the capital of the trust-estate, and paid as legitim to the Duchess of Buckingham, and to apply the same accordingly; and to that extent sustains the claim for the Earl of Breadalbane: Repels the second and third claims of the said judicial factor, and decerns: Appoints the cause to be put to the roll with a view to farther procedure, and reserves all questions of expenses.

Note.—The Duchess of Buckingham having claimed and taken legitim, was found to have forfeited the provisions in her favour contained in the settlement of her father, the first Marquess of Breadalbane, and her claim to the rents of her father's unentailed lands, in terms of the codicils to his settlement, was repelled by interlocutor, dated 5th March 1840. That forfeiture was found by interlocutor, dated 15th January 1841, to operate during the life of the Duchess of Buckingham in favour of the trustees under the settlement of the first Marquess. By the two codicils of 30th June 1829 and 26th August 1829, the trustees are directed to pay to the Marquess’ two daughters, Lady Elizabeth Pringle and the Duchess of Buckingham, equally between them, and to the survivor, the free rents of his unentailed lands. According to the true construction of these codicils and of the trust-disposition and settlement, it is, in the opinion of the Lord Ordinary, only upon the death of the survivor, Lady Elizabeth Pringle, that the rents of these unentailed lands will become payable to the heirs of entail of the Breadalbane estates called by that trust-deed. The second Marquess of Breadalbane, the first called of these heirs, who died on 8th November 1862, had no right to any part of these rents. One half of them was payable to Lady Elizabeth Pringle during the life of her sister, the Duchess of Buckingham, and, on the Duchess’ death Lady Elizabeth Pringle acquired right for her life to the whole of these rents. During the Duchess’ life the half of these rents provided to her fell to be retained by the trustees as a surrogate for the sums taken from the capital of the trust-estate, and paid to her as legitim, and the proceeds of that half must be invested and applied by the trustees in terms of the first Marquess’ trust-settlement.

The Lord Ordinary has on these grounds repelled the claim of the judicial factor on the estate of the second Marquess to the rents of the unentailed lands. But the judicial factor also claims to be ranked and preferred to the other revenue of the trust-estate from Whitsunday 1854 to 8th November 1862. If there had been any such free revenue his claim would not be disputed, but the trustees aver that there was no such free revenue, and that there was, on the contrary, a deficiency. In support of this statement they have lodged their accounts, with reports thereon by the late Mr Mansfield, C.A. Should the judicial factor, notwithstanding these reports, which distinctly state the annual deficiency from 1854 to 1864, insist in his objections in regard to this matter, a remit to an accountant will be necessary.

2. The Lord Ordinary has been unable to find any provisions in the trust-settlement in virtue of which he can hold that the annuities granted or bequeathed by the first Marquess must, contrary to the ordinary rule, be debited, not to the revenue, but to the capital of the trust-estate.

3. The sums expended on permanent improvements on the lands in the hands of the trustees were paid out of the trust-funds, under an arrangement with Lady Elizabeth Pringle, who had right to the rents, that she should pay 7½ per cent. per annum for 18¼ years on the sums so expended, four per cent. of which was to be accumulated for the purpose of replacing the capital advanced, and the remaining 3½ per cent. of which was to be dealt with as interest. This was an act of beneficial management, and within the powers conferred upon the trustees by the trust-settlement. Further, the Lord Ordinary is of opinion that the claim of the judicial factor that the whole 7½ per cent. per annum paid by the liferentrix, under the above-mentioned arrangement, should be credited to income is altogether untenable, and that the judicial factor is not entitled to have a larger sum credited than that stated in the trust-accounts.

4. The Lord Ordinary understands that parties hope to adjust the claim for £55, 12s. 6d. and £54, 3s. 2d.”

The judicial factor reclaimed.

At advising—