Scottish Court of Session Decisions

The parties to this case were (of the first part) John Boyd Kinnear, eldest son of the late Charles Kinnear of Kinloch, and (of the second part) the trustees and executors of the said Charles Kinnear. The facts were as follows:—

The late Charles Kinnear died on 9th April 1874, leaving certain testamentary writings by which he disponed to his trustees his lands and estate of Kinloch and others therein particularly described, lying in the parish of Collessie and sheriffdom of Fife; as also all other lands and heritable estate of every description which should belong to him at the time of his death, but excepting always therefrom his lands and estate of Kinnear and Hawkhill and others, lying in the parish of Kilmany and sheriffdom of Fife, to which he had succeeded, and which he then held under settlements of strict entail.

The testator further thereby conveyed to his said trustees his whole moveable means and estate of every kind and denomination, heirship moveables included, which should belong to him at the time of his death.

It was by the said trust-disposition and settlement declared that the same was granted in trust for the ends, uses, and purposes therein mentioned, and, inter alia, to the end that so soon after Mr Kinnear's death as conveniently might be, his whole moveable estate and effects thereby conveyed might be realised and uplifted, and also that his lands and heritable estate of every description thereby conveyed (excepting his said lands and estate of Kinloch as therein before specially described, with the furniture, silver-plate, paintings, bed and table linen, and other plenishing in the mansion-house thereof at the time of his decease) should be sold and disposed of by his trustees, and that the produce and prices of the same, together with the rents of his lands of Kinloch while they should be held by his trustees, and be vested in their persons, should be applied to the uses and purposes therein mentioned.

The testator by the said trust-disposition and settlement and codicils directed his trustees, in the event, which did occur, of the heir first entitled to succeed to the estate of Kinloch, being the party hereto of the first part, having attained the age of twenty-one years at the date of the testator's decease, and after payment of the expenses, debts, legacies, and provisions specified in the trust-disposition and codicils, to settle and secure his lands and estate of Kinloch therein specially before conveyed, and the plate, paintings, and other plenishing in the mansion-house thereof, and also the lands, if any, which might have been up to that time purchased by them, under the directions therein before contained, by deed or deeds of strict entail, whereby they should dispone and convey the same heritably and irredeemably to John Boyd Kinnear, his eldest son (the party hereto of the first part), and the heirs-male of his body, whom failing, to Charles George Hood Kinnear, his second son, and the heirs-male of his body; whom failing, to the other heirs and substitutes therein specified.

The trustees were directed to execute the said deed of entail under certain conditions, prohibitions, reservations, and provisions, including those necessary to constitute a strict entail, and it was directed that the deed of entail to be executed by the trustees should be so framed as to bind the institute in whose favour the same is directly granted, as well as the heirs of entail, and should contain all clauses necessary to render the same a strict, valid, and effectual entail according to law, any special directions as to clauses therein contained in no wise derogating from the power of the trustees to amend the same, and add new clauses for effectually carrying out his intention and desire.

The widow of the testator did not retain the mansion-house and furniture, &c., of Kinloch, but elected to accept an additional amount and sum of money provided to her in such an event. The trustees having paid or provided for all the provisions, &c., in the trust-deed and codicils, proposed to execute a deed of entail of the estate of Kinloch and others as directed, and they proposed to include in the deed of entail the plate, paintings, and other plenishings in the mansion-house of Kinloch. To this Mr Boyd Kinnear (the institute and party of the first part in this case) objected, and contended he was entitled to a conveyance or delivery of these articles in fee simple.

The questions submitted for the opinion of the Court were:—“Whether Mr Boyd Kinnear (the party hereto of the first part) is entitled to obtain forthwith from the trustees (the parties hereto of the second part) a conveyance or delivery of the plate, paintings, and other plenishing in the mansion-house of Kinloch, in fee simple? Or, Whether the trustees are bound to include in the deed of entail to be executed by them, not only the heritable subjects which the truster directed to be entailed, but also the said plate, paintings, and plenishing?”

Authorities— Gordon, 4 D. 501; Veitch, 25th May 1808, F.C.; Earl of Leven, M. 3217; Baillie, 21 D. 838; 11 and 12 Vict., c. 36, sec. 43; Maule, F.C., 2d Dec. 1817.