Scottish Court of Session Decisions

Captain James Scott Black presented a petition on March 11, 1873, for authority to disentail certain trust-funds, and acquire the same in fee-simple. Answers to this petition were lodged by Mr William Auld and others, trustees under the trust-disposition of the late Mr James Black, the petitioner's father.

The Lord Ordinary pronounced the following nt erlocutor:—

“ Edinburgh, 26 th May 1873.—The Lord Ordinary having heard counsel for the petitioner and the trustees of the late James Black, and considered the petition, and answers and productions, with reference to the views expressed in the subjoined note, Remits to Mr Ralph Dundas, W.S., to inquire whether the procedure has been regular and proper, and in conformity with the provisions of the Acts of Parliament and relative Acts of Sederunt; and also to inquire into the facts set forth in the petition; and to report.

Note.—This application, like a similar one at the instance of the Honourable Robert Preston Bruce of Prestonfield, raises a question of importance, both on account of the general principle and of the large pecuniary amount involved in the particular case.

The petitioner, Mr Scott Black, captain in the 11th Regiment of Hussars, is the second son of the late James Black, merchant in Glasgow, who died on 12th September 1844, when the petitioner was three years of age. Mr Black left a trust-disposition and deed of settlement, dated 7th July 1842, by which, inter alia, (by the fifth purpose) he left and bequeathed to the petitioner the sum of £40,000, with interest from the time of his death, under deduction of certain sums which might be laid out for his education and board. The deed then proceeds in the following terms in reference to the sum and interest so bequeathed:—“And I do hereby strictly provide and enjoin that of the said accumulated sum two-third parts or shares shall be laid out and invested by my said trustees in the purchase of a landed estate in Great Britain or Ireland, in such a situation or locality as may meet the approbation of my said son and of my said trustees; and the said estate shall be firmly entailed on him, and the heirs-male of his body lawfully begotten, according to their seniority, and the heirs male of their bodies, lawfully begotten, according to their seniority; whom failing, on the heirs-female of the body of the said James Scott Black, lawfully begotten, in their order, and according to their seniority; and on the heirs whomsoever of their bodies lawfully begotten, the eldest heir-female, and the descendants of her body lawfully begotten, always excluding heirs-portioners and succeeding without division. And the deed of entail shall contain all the usual and necessary clauses, and such prohibitory, irritant, and resolutive clauses as my said trustees shall conceive, or shall be advised to be necessary, and which shall be deemed effectual for preserving the said estate to the heirs before specified, and for preventing the succession from being altered, and the said lands, or any part thereof, from being sold, burdened, dilapidated, or evicted in any manner of way whatever in all time coming, excepting as aftermentioned; and I hereby provide that the said investment shall be made between the time my said son shall attain twenty-one years of age and thirty years of age; and after he shall attain twenty-five years of age he shall have the free use and disposal of the remaining third part of said accumulated sum, and the same shall be paid over to him accordingly; but the rents or profits derived from the estate so purchased, or the interest of the two-third parts or shares of the foresaid sum appropriated for the said purchase arising thereon before the estate is bought shall be purely alimentary, and not attachable in any way: Declaring also that after my said son shall attain

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twenty-one years of age, it shall be in the power of my said trustees to give or allow him the free use of the interest of one-half of the whole accumulated sum hereby bequeathed to him till he shall attain the age of twenty-five years complete; and it shall also be in the power of three-fourths in number of my said trustees to give the said James Scott Black the free use and disposal of one-third part of the portion of the legacy not appointed to be invested in the purchase of a landed estate, after he shall have attained twenty-one years of age; and between that time and the period at which he shall attain twenty-five years of age; but the said James Scott Black or his brother William Connel Black shall have no title to vote as trustees in either of the two last-mentioned cases.’

It will be observed from the terms of this provision that the truster, the petitioner's father, directed that two-third parts of the sum of £40,000 and accumulations should be laid out on land to be purchased and entailed by the trustees under his deed of settlement, between the time when the petitioner should attain twenty-one and thirty years of age. The petitioner attained twenty-one years of age on 1st July 1861, and is consequently now above the age of thirty, but to the present time the trustees have not made any purchase of lands. The present application relates to the trust funds which they hold under the truster's direction for that purpose, and which have now reached about £80,000, partly in consequence of a rise in the value of certain stocks in which the funds have been invested, and partly because a share of the legacy left to the late Simpson Black, the petitioner's younger brother, has been added, in consequence of his death, to the petitioner's share.

The petitioner applies to the Court for authority to disentail the trust funds just mentioned, under the provisions of the Rutherfurd Act (11 and 12 Vict. cap. 36), and specially section 3d, on the ooting that under the provisions of that statute (1) he is heir of entail in possession of an entailed estate, held by virtue of a deed of entail dated prior to 1st August 1848; and (2) that he is the only heir in existence, and unmarried. It is necessary to his success in the application that he should establish the affirmative of both of these propositions. If the entail under which the estate or funds are held is to be taken as of a date subsequent to 1st August 1848, because by the direction of the truster it was not to be executed till after 1st July 1861, when the petitioner attained to twenty-one years of age, the estate, as regards the right of an heir to disentail it, must be regulated by the 1st section of the Act, which requires, in the case of an heir of entail in possession born before the date of the entail, that he should have the consent of the heir next in succession, of the age of twenty-five years complete, and born after the date of the tailzie, so that in that case the petition must be refused. Again, if there be heirs of entail other than the petitioner in existence, the consent of the three nearest heirs must be obtained; and should it be held that such heirs exist, this application, which is made without their consent, must be refused.

The petitioner's elder brother William Connel Black, and his sister Lady Alison, are beneficiaries under the trust, as explained in the petition; and the respondents, as trustees under the deed of settlement, represent their interests, as well as those of their children. They resist the application on the two separate grounds (1), that the entailed estate or funds are held under an entail dated after 1st August 1848, and cannot therefore be disentailed by the petitioner alone, and at a date so soon after the date of the entail; and (2) that even assuming the estate or funds to be held under an entail dated prior to 1st August 1848, the petitioner is not, as he contends, the only heir of entail in existence, and so cannot execute an effectual deed of entail.

The Lord Ordinary is of opinion that the argument of the respondents on both these points is unsound.

The first of them depends on the view to be taken of the effect of sections 27 and 28 of the Rutherfurd Act. The respondents maintain that, according to the sound construction of section 28, the date of any entail to be in terms of trust directions must be fixed by a reference to the time at which the entail could have been first executed, and not sooner; thus, even in the case of a trust-deed which has come into operation as to itsg ene ral purposes by the death of the truster long prior to 1st August 1848, if the direction to purchase and entail lands has been suspended in its effect by one or more liferents, or by a condition being imposed which, for its fulfilment, required the lapse of a series of years, according to the respondents' contention the date of the entail in such cases must be taken as at the death of the liferenters, or the date at which the condition was purified, because then at the earliest the entail could have been executed, and not as at the death of the truster, when his general trust came into operation.

The petitioner, on the other hand, contends that the simple rule of the statute is, that the date at which the trust-deed, placing the property under trust to be ultimately entailed, came into operation, i.e., in the present case the death of the truster, shall, for the purposes of the Act, be held to be the date of any entail made in execution of the trust; and the Lord Ordinary is of opinion that this view is sound.

It was argued for the respondents, with reference to the words of section 28, ‘the date at which the Act of Parliament, deed, or writing, placing such money or other property under trust, or directing such land to be entailed, first came into operation,’ that the words ‘first came into operation must be construed to refer to the date of the deed coming into operation as a direct operative instruction to entail, admitting of being at once fulfilled; and that in the case where the fulfilment of the direction was necessarily suspended by existing liferents, or by such a condition as in the present case—viz., that the institute of entail should have attained a certain age before the entail should be executed, the deed would only come into operation in the sense of the statute when it was possible to execute the entail by the liferents having ceased, or the condition having been purified. The Lord Ordinary is, however, of opinion that there is no good reason for so construing the language of the statute. Taking the 27th and 28th sections together, it is obvious that the latter of these sections was intended to introduce a fixed and important general rule, regulating for the purposes of the Act the date of entails made or to be made under trust directions. The language used is distinct and unambiguous, and fixes the date at which the Act of Parliament or trust-deed containing

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the direction to entail first came into operation as the date of the entail to be afterwards made. If it had been intended by the Legislature to refer not to the date when the Act of Parliament or trust-deed first came into operation generally, as a statute or trust-deed, but to the date at which the direction to entail first came into operation in this sense, that it became possible for the trustees, in compliance with the directions given to them, to execute the entail, this might have been easily provided. The argument of the respondents seems to require that words shall be added to the section beyond those which it contains for the purpose of giving to it the meaning for which they contend, and which is different from the plain and ordinary meaning of the words used. It is true that the effect of the 28th section, as construed by the petitioner, is to do some violence to the directions of the trust-deed or Act of Parliament; for, although the execution of the entail may thereby be postponed for a considerable time, the Act of Parliament declares that, for the purposes of the Act, the date of the entail shall be taken as if no such postponement had been ordered. It is not, however, remarkable that directions to entail contained in a trust-deed or Act of Parliament should be so dealt with, or that a direction to postpone making an entail, with the effect of thereby making the entail more enduring, should not be effectual; for it was the avowed purpose and effect of the statute to limit the effect and duration of entails; for, according to the preamble of the statute, the existing law of entail had been found to be ‘attended with serious evils, both to heirs of entail and to the community at large.’

The view which the Lord Ordinary takes of the 27th and 28th sections of the statute received effect in the case of Dickson v. Dickson, 8th June 1855, 17 D. 814. In that case a person having an interest as an heir of entail in trust money directed to be invested in land to be entailed, taking advantage of section 29 of the statute, granted a provision under the Aberdeen Act in favour of his wife, who survived him. The truster who left the fund to be entailed died in 1837, but by much the greater part of the fund to be ultimately laid out in the purchase of lands to be entailed was given in liferent to the truster's sister, who survived till 16th January 1850. The granter of the bond of provision died on 2d May 1850, before the direction to purchase and entail lands was or could be carried into effect. The Court held the provision to be effectual. In doing so, it became necessary to settle the question whether the entail was to be held as dated prior to 1st August 1848 or not? for in the former case only, according to the opening words of the 29th section of the statute, a provision under the Aberdeen Act could competently be granted; and it was held, with reference to section 28 of the statute, that the date when the trust-deed came into operation, viz., 1837—not the date when the direction to entail first admitted of being carried into effect, viz., 1850—was the date of the entail. The Lord Ordinary is therefore of opinion that, on a sound construction of the statute, and on the authority of the case just noticed, the entailed estate or funds in the present case must, with reference to the clauses authorising disentail under the statute, be regarded as held under an entail dated in 1844, when the trust-deed of the late Mr Black came into operation.

It was further maintained for the respondents that, in any view, the petitioner is not the soleheir of entail in existence. This contention was founded on the following clause in the trust-deed: ‘Declaring also that in the event of my said son James Scott Black dying without leaving lawful issue, the said estate, if the same shall have been purchased, shall, immediately after his death, be sold, and the price thereof and whole accumulations, either of rents or interests, accruing subsequent to the death of my said son, be divided among my surviving sons and daughters in the proportions following, viz., Each of my sons shall receive a double share or portion of the said price, and each of my daughters shall receive the one-half of the portion or share falling to a son; and declaring also, that if any of my children shall have died leaving lawful issue, such issue shall succeed equally among themselves to the share that would have fallen to their deceased parent had he or she been in life; and for the purpose, in the event foresaid, of enabling the said lands to be sold, 1 appoint and order the person who may at the time be the heir of the investiture, to make up titles thereto in a proper and legal manner in fee-simple; and on the said lands being sold, to dispone and convey the same to the purchaser, his heirs and successors, heritably and irredeemably: Declaring also that the share or portion of the said price and accumulations thereof falling to or devolving on any of my daughters shall be held by my said trustees for behoof of such daughter in liferent, for her liferent use allenarly, and the child or children of her body lawfully begotten in fee, and shall be invested by my said trustees accordingly, and in precise conformity to the directions, conditions, provisions, and stipulations hereinbefore written in reference to the legacy of £20,000, specially bequeathed to my daughter, the said Jane Rodger Black.’

The provision now quoted is certainly a very peculiar one. The trust-deed in express terms directs that a deed of strict entail on a series of heirs shall be executed, and yet contains a provision that should the petitioner die without leaving issue, and so the heirs called should fail, the estate shall be sold, and the price divided among the petitioner's brothers and sister, and their families; and the truster directs that the person ‘who may at the time be the heir of the investiture’ shall make up titles thereto, and, on the lands being sold, convey them to the purchaser. The question is, Does this clause call into existence any heirs of entail other than the petitioner? The respondents do not maintain that the petitioner's surviving brother and sister are such heirs of entail, for, according to the truster's direction, the property, when the tailied destination fails, is to be sold, and the price of it divided among certain beneficiaries. They, however, maintain that they are entitled, in any deed of entail to be executed by them, to insert their own names in their character of trustees as heirs of entail, to take the property, failing heirs of the petitioner's body, for the purpose of selling it and dividing the proceeds.

The Lord Ordinary is of opinion that the insertion of any clause in the deed of entail which should have the effect, after the exhaustion of a series of heirs, of taking the property back to the respondents with this view, would be inconsistent with the character of a deed of entail, and ineffectual. But however this may be, he is further of opinion that the respondents are not entitled to insert their own

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names, as trustees, as heirs of entail under the deed; and that consequently the petitioner is not only the heir of entail in possession in the sense of the Rutherfurd Act, but, being the sole heir of entail in existence and unmarried, holding the estate under an entail dated prior to 1st August 1848, he is entitled to succeed in the present application.

On the grounds above stated, the Lord Ordinary is of opinion that the petitioner is entitled to succeed in his application, on the assumption that the facts stated in the petition are correct, and the procedure under the statutes regular; and with the view of ascertaining whether this be so, the Lord Ordinary has made the usual remit to a professional man to inquire, and report.”

“ Edinburgh, 16 th June 1873.—The Lord Ordinary having resumed consideration of the petition and proceedings, with the report by Mr Ralph Dundas, W.S., No. 13 of process, Finds that the procedure has been regular and proper, and in conformity with the provisions of the Acts of Parliament and relative Acts of Sederunt; and with reference to the Note to the foregoing interlocutor of 26th May last, Finds that the trust-disposition and settlement of the said deceased James Black, merchant in Glasgow, under which the respondents, his testamentary trustees, hold the fund which forms the subject of the present application in trust, for the purpose of being applied in the purchase of land to be entailed upon the petitioner, and the series of heirs mentioned in said trust-disposition and settlement of the said James Black, having first come into operation on the death of the said James Black, which took place on 12th September 1844, that date, viz., 12th September 1844, must, for the purpose of the Act 11 and 12 Victoria, chapter 36, be held to be the date of any deed of entail which the trustees might execute in favour of the petitioner and the said series of heirs: Finds that the petitioner is the only heir of entail at present in existence under the destination above mentioned; and that, in respect he has attained the age of 25 years complete, and is now unmarried, he is entitled, in virtue of the 3d and 27th sections of the said Act, to receive payment from the said trustees of the said deceased James Black of the sum of £79,851, 7s. 9d., or such other sum as shall be ascertained to be the amount of the said fund, after deduction of the sums which shall be expended or required by the said trustees out of the residue of the trust-estate in order to purchase or provide for the annuities granted by the said trust-disposition and settlement, and still to be provided for: Interpones authority: Grants warrant to and authorizes and ordains the said trustees to pay, transfer, convey, and make over the various funds and property composing the said sum of £79,851, 7s. 9d., under deduction as aforesaid, and all securities held by them for the same, with the interest and dividends due thereon, to the petitioner, on his granting to them a valid acknowledgment and receipt therefor; and decerns ad interim: And, on the motion of the respondents, Mr Black's Trustees, grants them leave to reclaim against this interlocutor,”

The respondents reclaimed.

At advising—