Scottish Court of Session Decisions

Robert Frederick North Bickerton Moubray, who resided at Cockairney, in the county of Fife, died on March 31st 1875 leaving certain holograph testamentary writings dated in 1867 and 1868. By the first of said writings, dated 10th June 1867, Mr Moubray provided—“This is my last will and testament. I beg Coutts and Co. will continue to re-invest twice a-year my balance in their hands less £10, ten, if that is necessary to keep the account with them open; and my trustee or trustees, when it has amounted to £40,000, forty thousand pounds, will buy lands in Fife in the western district, or as near the estate of Cockairny as may be, and entail said lands on my nearest of kin in the strictest way admissible by the law of Scotland. I leave my snuff-boxes to my two brothers William and Edward, and any other trifles I may leave among my sisters, married or single. I leave my brother William Hobson Moubray, living at Otterston, my testamentary executor, or, if he should die before me, my next blood or collateral relative, and beg my remains may be interred by him in the funeral ground of Cockairny in the Dalgety Church (old yard).”

On 18th November 1868 Mr Moubray executed another holograph writing in these terms—“Should the estate of Cockairny be no longer in the possession of my relatives by blood in regular succession, when the forty or forty-five thousand pounds have accumulated, I desire that sum may be devoted to the purchase of land as near to the estate of Upwood, Hunts, as may be, and such lands to be strictly entailed on the possessor of the lands of Upwood and Wood Walton in the same manner according to the law of England, as correspondingly it would have been if invested in lands adjacent to Cockairny, Fife, as above.”

The last holograph writing dated 30th April 1868 was in these terms—“This is my last will and testament. I beg Messrs Coutts and Co., London, will continue to reinvest twice a-year any balance in their hands on the conditions if necessary of keeping ten pounds at the disposal of my trustees in their hands; and when the sum invested shall be sufficient to realise forty—one thousand pounds, my trustees shall have power to realise through Messrs Coutts

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and Co. that sum, and to take a present opportunity of investing that sum in lands in the county of Fife as near to the estate of Cockairny as possible, and as strictly as the law of Scotland will allow to entail such lands purchased as above on my heirs direct or collateral so long as the estate of Cockairny is theirs. When it is not any longer in the possession of the Moubrays, the estate purchased as above may become the hereditament of the Hussey family of Woodwalton, Herts, always provided the family of Moubray of Cockairny no longer exists in Scotland, having become extinct, and the name in this latter case to be adopted by Hussey shall as regards the lands to be acquired as above be ‘Hussey Moubray.’ I name my nearest male relative my heir, and bequeath to him as heirlooms the gold chain given me by my grandfather.” …

The testator left personal estate to the amount of £20,866, 16s. 2d. He left no heritable estate. He was survived by his brothers William Hobson Moubray and General Edward Moubray, by five sisters, and by the children of two sisters who predeceased him.

Upon the testator's death his brother William Hobson Moubray accepted the office of executor, and in 1882 he assumed three other trustees to act with him. In the same year, doubts having arisen as to the true meaning of the testamentary writings, and conflicting claims having been made on the trust —estate, the trustees brought an action of multiplepoinding to have the rights of parties determined. The amount of the fund in medio was stated to amount to £26,000 or thereby.

Upon July 13th 1883 the Lord Ordinary ( M'laren) found that “until the expiration of a period of twenty-one years from the testator's death, or until the accumulated fund shall amount to the sum of £41,000, the right of the institute does not vest, and no decision can in the meantime be given as to the legal effect of the direction to entail, or the persons (if any) entitled to be named in the destination.”

William Hobson Moubray died in 1885 survived by two sons—Captain William Henry Hallo well Carew Moubray and Arthur Moubray, and nine daughters. One of his daughters, Mrs Philipps, had predeceased him. General Edward Moubray died on March 17th 1882 survived by his widow and one son, Robert George Moubray.

Upon February 14th 1894 the sum of £41,000 having been accumulated, the action of multiplepoinding was awakened by the testator's surviving trustees. Claims were lodged by the following parties (1) Captain William Carew Moubray, eldest son of William Hobson Moubray, who claimed payment of the whole fund in medio as heir-at-law of the testator, on the ground that the destination “on my heirs, direct or collateral, so long as the estate of Cockairny is theirs,” was not a tailzied destination, but merely an expression of the legal order of succession which was incapable of being fenced under the Act 1685, c. 22. (2) The representatives of General Edward Moubray, who maintained, primo, that the direction to entail was ineffectual, and that, upon a sound construction of the holograph writings, et separatim under the provisions of the Entail Acts, the “heirs, direct or collateral” called by the testament fell to be ascertained at the date of the testator's death, and were—William Hobson Moubray and General Moubray, jointly. (3) Arthur Moubray, the younger son of William Hobson Moubray, who maintain ed that the fund in medio should be invested by the trustees in the purchase of lands, “and that the said lands should be settled by deed of entail at the sight of the Court upon Captain William Henry Hallowed Carew Moubray and the heirs of his body; whom failing the present claimant and the heirs of his body; whom failing the nearest in kindred of the truster in terms of the directions of the truster, or at all events that the said lands should be so settled as to be beyond the disposal of the said Captain William Henry Hallowell Carew Moubray.” (4) Selina Mary Philipps and Ivor Philipps, grandchildren of William Hobson Moubray, who maintained that the direction to entail was invalid, and that in terms of sec. 13 of the Entail Amendment Act 1875 the whole estate vested in William Hobson Moubray at the testator's death, and was carried to William Hobson Moubray's trustees, to be distributed as part of his moveable estate.

Upon October 30, 1894, the Lord Ordinary ( Kincairney) pronounced this interlocutor —“Finds (1) that the late Robert Frederick North Bickerton Moubray, by his testamentary writings, whereof No. 13 of process is an official copy or extract, directed that his funds should be accumulated until they reached the sum of £41,000, and that the accumulated sum should be invested in the purchase of lands in the county of Fife, as near the estate of Cockairnie as possible, and that such lands should be entailed; (2) that the said funds have now reached the said sum, and that the time for purchasing said lands and executing said entail has arrived; (3) that the said testamentary writings import a direction to entail the lands when purchased on the heirs in heritage of the testator, being the heirs of his blood in the order of heritable succession; (4) that the destination so directed is a valid and effectual tailzied destination; (5) that the deed of entail falls to be executed in favour of the claimant Captain William Henry Hallowell Carew Moubray as institute, and the heirs of his body, whom failing, in favour of the claimant Arthur Moubray and the heirs of his body; whom failing, as may be hereafter determined: Therefore repels (1) the claim for the said Captain William Henry Hallowell Carew Moubray; (2) the claim for Arthur Moubray, as executor of the deceased General Edward Moubray and others as amended; (3) the claim for Selina Mary Philipps and others : Sustains the principal claim for the said Arthur Moubray so far as consistent with the foresaid findings: Appoints the cause to be enrolled for further procedure; Grants leave to reclaim.”

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“Opinion.—This multiplepoinding brought for ascertainment of the rights of parties under the testamentary writings of Mr R. F. N. B. Moubray, who resided at Cockairnie, in the county of Fife, was signeted on 15th June 1882. A judgment was pronounced by Lord M'Laren on 13th July 1883 to the effect that no decree could be given as to the effect of the testator's directions to entail until the sum of £41,000 had been accumulated, and the action was therefore allowed to lie over. That sum has now been reached, and the case has been anew prepared and submitted for judgment.

The record is new, and some of the present claimants were not represented before Lord M'Laren.

The testator died without issue in 1875, survived by two younger brothers, William Hobson Moubray and General Edward Moubray, by five sisters, and by the children of two deceased sisters. William Hobson Moubray died in 1885, survived by several children. His eldest son was Captain William Moubray, his second Arthur Moubray. General Edward Moubray died in 1882, having left only one child, Robert George Moubray.

William Hobson Moubray was the testator's heir-at-law at the testator's death. His eldest son, Captain Moubray, is now the testator's heir-at-law.

The testator's testamentary writings are of a very informal character. They are written on three pieces or fragments of paper. The first piece of paper contains the wills or bequests bearing dates in 1867, and the beginning of the writing which bears the two dates 18th November 1867 and 18th November 1868, which writing is concluded on another fragment of paper. The will bearing date 30th April 1868 is written on a separate sheet.

By Lord M'Laren's judgment it was determined that all these writings are separate testamentary acts. And at the debate it was assumed that his Lordship's judgment to that effect was final in the Outer House.

The present claimants are—(1) Captain Moubray, eldest son of William Hobson Moubray, who maintains that the testamentary writings contain no effectual direction to entail, and that in virtue of these writings, he being now the testator's nearest heir, is entitled to a fee —simple estate, and therefore to payment in money of the whole accumulated fund. (2) Arthur Moubray, his brother, who maintains that there is a good direction to entail, and that the testator's trustees ought to purchase land, and settle it in strict entail in the terms stated in his claim. Alternatively, he states a claim on the footing that there is intestacy. (3) The representatives of General Edward Moubray, who claim that the heirs of the testator, called by his testament, are to be ascertained at the date of his death, and were William Hobson Moubray and General Edward Moubray. They maintain that there is no effectual direction to entail, and on that footing they claim one half of the estate. They state alternative claims, one of which is on the footing of intestacy. (4) Grandchildren of William Hobson Moubray maintain that the whole estate vested in William Hobson Moubray at the testator's death and was carried to William Hobson Moubray's trustees, to be distributed as part of his moveable estate. Alternatively they claim on the footing of intestacy.

I had the benefit of a very able argument in support of the claims of each of these parties. The principal questions are these—(1) Do the testamentary writings contain an effectual direction to entail, and, if so, on whom, and in what terms? (2) If not, did the right to the fund vest a morte testatoris, and, if it did, did it vest in William Hobson Moubray only, or in him and his brother Edward equally? Or (3) did it vest when the appointed fund was accumulated, and not till then, and in that case would the whole fund be payable to Captain Moubray, now the testator's heir-at-law ? Or (4) should the estate be divided as intestate succession ? I suppose that, before Lord M'Laren, this view was supported on the ground that the writings were not testamentary, but were mere notes or jottings, but that view has been negatived by Lord M'Laren, and was not resumed, and intestacy was supported on the ground that the testator's directions were void from uncertainty, and inextricable, and they are certainly extremely obscure.

The first of these questions, if answered affirmatively, will supersede the rest, and comes first in order, because the main desire of the truster — indeed, in some sense, his whole desire—was manifestly that his funds should be accumulated and invested in the purchase of land, and that the land should be settled in strict entail. The primary question therefore is whether his directions and the expressions of his desire are sufficient to enable the Court to carry them into effect.

It was maintained that they are not, because the testator's direction in the writing dated 30th April 1868 is to entail the lands purchased on the testator's heirs ‘direct or collateral.’ And it is maintained that that is the same as a direction to entail on his heirs whatsoever or general, and it is maintained to be settled law that a deed purporting to entail lands on heirs whomsoever or heirs-general is not an entail. This is, no doubt, settled law, and it is not necessary to do more than quote the more recent cases referred to by which the point was authoritatively decided — Leny v. Leny, 28th June 1860, 22 D. 1272; Macgregor v. Gordon, 1st December 1864, 3 Macph. 148; Gordon v. Gordon, 2nd March 1866, 4 Macph. 501; Gordon v. Gordon's Trustees, 28th October 1881, 9 R. 50. The point is indeed so well settled that it is expressed as law in the 13th section of the Act 38 and 39 Vict. cap. 61.

The only question open is whether the direction is a direction to entail on heirs—general or heirs whatsoever.

I consider that in order to solve this question, I am bound to read and take into

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account the whole of the testamentary writings. I was referred to a passage in Lord M'Laren's opinion, where it is said that in considering whether the testator had effectually directed an entail to be executed of his accumulated estate his Lordship founded entirely on the writing of April 1868.

With much deference, I am unable to see that the testamentary writings can be dealt with in that manner. I think I must read them all as one will, and reconcile them if I can, although, no doubt, if reconciliation on any point be wholly impossible, I suppose that that which was the later written would prevail. Still, in considering this point I must begin by reading the will earliest in date, which bears the date 10th June 1867. By that deed the testator desires that lands should be bought in Fife, in the western district, as near the estate of Cockairnie as might be, and entailed on his nearest of kin in the strictest way admissible by the law of Scotland. If the term nearest of kin were to be interpreted in the ordinary way, this would not be a good direction to entail, not because such a destination would be equivalent to a destination to heirs whomsoever. or would carry the estate out of the blood and kindred of the testator, which it would not, but because it would be a direction to entail on several individuals, like a direction to entail on heirs-portioners, which when reached brings an entail to an end, and by which it is impossible that a tailzied destination could be begun. But in the case of Connell v. Grierson, 14th February 1867, 5 Macph. 379, it was held that a destination in favour of the entailer's ‘nearest of kindred’ imported a destination to the entailer's nearest blood relation according to the rules of succession in heritage. It is not, I think, necessary to consider whether the destination in the first of Mr Moubray's wills to his nearest of kin would, if it stood alone, be read as a destination to the nearest blood relation according to the rules of succession in heritage. But the case of Connell v. Grierson proves that that would be a possible reading. At all events a destination to next-of-kin is clearly a destination to kindred or relatives by blood, and is therefore in that respect more confined than a destination to heirs whomsoever. But there is in another part of the testamentary writings, which together form Mr Moubray's will, another destination of the lands to be purchased, viz., the direction in the separate writing of 30th April 1868 to entail the lands purchased ‘as strictly as the law of Scotland will allow … on my heirs direct or collateral so long as the estate of Cockairny is theirs.’

If that destination were read alone, it would be difficult to dispute that it is a destination to heirs whomsoever. But I do not think it necessary or indeed legitimate to read it alone. I can see no sufficient reason for holding that it recals or supersedes the prior destination. On the contrary, I take it that it is necessary to read these two destinations together; and, reading them so, I think the conclusion legitimate that the direction is to entail in favour of the testator's heirs direct or collateral, being his nearest of kin—that is to say, in favour of his nearest heirs being his relations in blood, or otherwise as in the case of Connell v. Grierson, of his nearest and blood relation according to the rules of succession in heritage.

It appears to me that this view receives support from the subsequent sentence, which seems to be of the nature of a glossary or interpretation clause—‘I name my nearest male relative my heir,’ and also (when one understands how he and his family stood related to the lands of Cockairnie) by the words ‘so long as the estate of Cockairny is theirs,’ which follow the destination to heirs direct or collateral. I understand that when he wrote his deed that estate belonged to his brother, William Hobson Moubray, and when the testator says, ‘so long as the estate of Oockairny is theirs,’ he certainly means so long as the estate of Cockairnie belongs to the Moubrays. Then in the writing which bears the double date, the testator provides for the event of the estate of Cockairnie being no longer in the possession of ‘my relatives by blood in regular succession’ when the sum at which he aimed had been accumulated, and in that case he directs another destination.

On the whole, I am of opinion that the destination in this case is not, according to the sound construction of the whole testamentary writings, a destination to heirs whomsoever, but to heirs in heritage of the testator's blood.

Indeed, when one is comparing one clause with another of the testator's writings, and considering the meaning of his somewhat lame efforts to express himself, one cannot but feel that there is, after all, no uncertainty whatever about his meaning to a certain extent, and that he most certainly meant to direct an entail to his nearest heirs in blood—that is to say, William Hobson Moubray if alive, and the heirs of his body, whom failing, to Edward Moubray if alive, and the heirs of his body.

I think, therefore, that the argument that the direction to entail is bad because it is a direction to entail on heirs-general or heirs whomsoever must be repelled.

But there is another difficulty arising from the references made in the deed to the estate of Cockairnie. Considering the great importance attached by the truster to that estate, the information given about it on record is exceedingly scanty. It appears to have been the residence of the testator, and the property of William Hobson Moubray. An extract of William Hobson Moubray's trust-deed has been lodged in process, and it appears that he dispones his whole estates to trustees, and that with reference to his estate of Cockairnie he directs them to hold it (and other subjects) for his eldest son and the heirs-male of his body, whom failing, his second son or other sons in their order respectively, and the heirs-male of their bodies respectively, but

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subject always to the condition that the heir who should succeed after the truster to estates in the county of Huntingdon, called Upwood and Woodwalton, should not also take Cockairnie, and he directed his trustees to hold Cockairnie for his children respectively as before mentioned until the succession to the estates of Upwood and Woodwalton should open, and upon that event, or upon the death of the truster, the said William Hobson Moubray, if the succession to Upwood and Woodwalton had opened to him, they should convey the estate of Cockairnie and others to the child entitled thereto under that destination other than the heir of entail who should succeed to Upwood and Woodwalton. There is no direction to entail Cockairnie.

The record tells nothing at all about the state of possession of Upwood and Woodwalton.

I hold that under this deed it is impossible to say that the estate has passed from the possession of the Moubray family, and consequently I hold that the destination in favour of the ‘Hussey family’ or possessors of Upwood and Woodwalton, does not come into operation. Richard Hussey Hussey, who was called in this action as heir of entail in possession of the estates of Upwood and Wood walton, has not appeared. I hold therefore that, as the sum appointed has been accumulated, and as the estate of Cockairnie is still in possession of the Moubrays, the time for investing the accumulated money in the purchase of lands and for executing an entail of these lands, if that be possible, has arrived.

If, then, a deed of entail is to be executed, the question arises whether a clause ought to be inserted giving effect to the words ‘so long as the estate of Cockairnie is theirs.’ That appeared to me at first a question of considerable difficulty, but I am of opinion that there ought not to be such a clause. I am disposed to think that these words, followed by the words, ‘when it is no longer in the possession of the Moubrays,’ are substantially a repetition of the words, ‘should the estate of Cockairnie be no longer in the possession of my relatives by blood in regular succession when the £40,000 or £45,000 have accumulated,’ in which case the testator destined the lands to be entailed otherwise. I think both forms of expression were meant to point to a condition of matters at the date when the entail fell to be made in which the entail to the Moubrays was not to be made at all, but that they do not express a condition which the testator desired to be inserted in the deed of entail when it was made. Taking that view, I do not endeavour to frame a clause which, as a condition in the entail, would give effect to the testator's various expressions of his desire on this subject. I rather think it would prove impossible to do so.

But if it be correct to read this clause as merely a declaration that the entail is not to be made in favour of the Moubrays, if, when the date for making it arrives, that family be not in possession of Cockairnie, and be extinct in Scotland, the difficulty caused by the clause disappears, for I think it clear that the relation of William Hobson Moubray's sons towards Cockairnie is such as to admit of the fulfilment of the truster's desire.

I think, therefore, that the testator's directions to purchase lands with the accumulated money and to entail them must be implemented.

I see no reason to doubt that the institute in the destination must be Captain William Moubray. It was argued by certain of the parties that, in respect of the provisions of the 28th section of the Entail Amendment Act (11 and 12 Vict. cap. 36), any entail would fall to be dated from the date of the granter's death. But if there is to be a strict entail, that is of no consequence, for in any view, seeing that William Hobson Moubray is dead, his son, Captain William Moubray, must of necessity be the first heir in the entail. I have not been informed that his right is affected by the provisions of William Hobson Moubray's trust-deed in reference to Upwood and Woodwalton.

I am therefore of opinion that the pursuers are bound in implement of the directions of the testator, to purchase lands as near to Cockairnie as possible, and to entail these lands on the testator's nearest heirs in heritage being of the testator's blood. That will no doubt be accomplished by executing an entail in favour of Captain William Moubray and the heirs of his body; whom failing, Arthur Mowbray and the heirs of his body. When the lands have been purchased it will then be proper to adjust the deed of entail, and then to consider the further and ultimate terms of the destination and the clauses, if any, with reference to heirs-portioners or otherwise which it may be right to introduce into the deed.

This construction of the testamentary writings of course negatives all the other claims, and it is therefore unnecessary to consider the difficult questions which were argued on the footing that there was no effectual direction to entail.” …

The claimant, Captain William Carew Moubray, reclaimed.

In the Inner House a joint-minute of admissions was lodged for the parties in these terms :—” That the lands of Cockairnie in the west of Fife form the ancient family estate of the Moubrays of Cockairnie. They were possessed at the commencement of this century by Sir Robert Moubray, who in 1814 acquired the adjacent lands of Otterston, and thereafter possessed Cockairnie and Otterston as one estate. There is a mansion-house upon each. He died on 10th October 1848.

Sir Robert's younger brother, Richard Hussey Moubray, succeeded to the lands of Upwood and Woodwalton in the county of Huntingdon, and took the name of Hussey Hussey, and as Sir Richard Hussey Hussey he possessed them under an English entail until his death in 1842, when he was succeeded by his son Richard Hussey Hussey, now the heir in possession. The present

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proprietor of the English estates was thus the nephew of Sir Robert Moubray, and first cousin of the testator, Robert Frederick North Bickerton Moubray (who was Sir Robert's eldest son), and he was in possession of Upwood and Woodwalton when the testator wrote his testamentary deeds. Under the English entail it is understood that, failing issue of Mr Richard Hussey Hussey (who is unmarried, and is believed to be about 80 years of age), the testator would have succeeded to the English estates if he had survived.

On the death of Sir Robert Moubray in 1848 it was found that he had left the estates of Cockairnie and Otterston, which he held in fee-simple, to trustees, with directions to secure to his wife, and after her death to his unmarried daughters, the liferent of the mansion-house of Cockairnie, and to convey his estates (passing over his eldest son, the testator, for whom he provided otherwise) to his second son, William Hobson Moubray, and the lawful issue of his body; whom failing to his youngest son and daughters in their order. He directed that, in the event of the estate of Woodwalton devolving upon his son William Hobson Moubray, his lands of Cockairnie and Otterston should go to his youngest son, it being his wish that his estates in Fife should not be united with the estate of Woodwalton. His trustees in 1851 conveyed the estates to his son William Hobson Moubray accordingly with this destination and direction. In 1867 William Hobson Moubray conveyed the estates to himself and his heirs and assignees whomsoever, free of any condition relating to the devolution of the estates. He was thus fee-simple proprietor of the Scotch estate when the testator (his elder brother) wrote his testamentary deeds.

William Hobson Moubray was in possession of the estates when the present action was raised, and died in 1885, leaving a trust-disposition and settlement, which has been printed, and to which reference is made. In terms of article 7 thereof his trustees now hold the estates of Otterston and Cockairnie for the use and behoof of his eldest son, Captain William Henry Hallowell Carew Moubray, and the heirs-male of his body, whom failing, of his second or other sons in their order respectively, and the heirs-male of their bodies respectively, subject to the liferent use by the sole surviving daughter of Sir Robert Moubray of the mansion-house of Cockairnie, and to the liferent use by the widow of William Hobson Moubray of the mansion-house of Otterston, and also subject to the condition that in respect that William Hobson Moubray was the next heir to the estates of Upwood and Woodwalton, and that it was his wish that the heir who should succeed after him to these estates should not also take the estates of Otterston and Cockairnie, his trustees are to convey Otterston and Cockairnie to the child who may be entitled thereto, other than the heir who shall succeed to Upwood and Woodwalton.

The reclaimer is married. There are six younger sons of William Hobson Moubray surviving.

William Hobson Moubray would, it is understood, have succeeded to the English estates had he survived Mr Richard Hussey Hussey, his first cousin, and the reclaimer is now believed to be the next heir entitled to succeed.”

The arguments of the parties appear sufficiently from the opinions of the Lord Ordinary and Lord Rutherfurd Clark.

Cases cited— Stoddart v. Grant and Others, June 28, 1852, 1 Macq. 163; Grant v. Stoddart &c., February 27, 1849, 11 D. 860; Sibbald's Trustees v. Greig, January 13, 1871, 9 Macph. 399; Collow's Trustees v. Connell and Others, February 23, 1866, 4 Macph. 465; Connell v. Grierson, February 14, 1867, 5 Macph 379; Tronsons v. Tronsons, November 21, 1884, 12 R. 155; Black v. Auld, November 5, 1873, 1 R. 133; Gordon v. Gordon's Trustees, March 2, 1866, 4 Macph. 501; Cowan v. Cowan, March 19, 1887, 14 R. 670.

At advising—