Scottish Court of Session Decisions

By antenuptial contract of marriage entered into between the late Mr Thomas Livingstone Fenton Livingstone of West Quarter and Miss Christian Margaret Waddell with consent of her father Mr William Waddell of Easter Moffat, and dated 4th April 1855, certain provisions were made by Mr Thomas Livingstone on the one hand, and Mr William Waddell on the other hand. The provisions settled by Mr Thomas Livingstone proceeded on a narrative of the entail of the estate of West Quarter, of which he was then heir of entail in possession, the destination being in favour of “the heirs-male of his body,” and under which he had power to provide his wife, in the event of her survivance, with an annuity of £200, and to secure his younger children in a sum of £1000 out of the estate. He bound himself and his heirs of tailzie to infeft his wife in such annuity, and to pay such sum to the children of the marriage “other than the heir who shall succeed to the said estate of West Quarter, or to the estates of Bedlormie and Easter Moffat, or either of them.” On the further narrative of the failure of heirs under an entail of the estate of Bedlormie, and of a certain agreement whereby in the event of Mr Livingstone's grandmother establishing a legal title to the estate it was to be conveyed to him and his heirs, he bound himself to settle it on the heirs-male of his body “so as the heir-male of his body may reunite in his person the said estate of Bedlormie with the said entailed estate of West Quarter.” The wife in the event of her survivance was to be secured in an annuity of £150 out of this estate. Lastly, Mr Livingstone assigned to the children of the marriage “other than the heir or heirs succeeding to the estates of West Quarter, Bedlormie, and Easter Moffat, the sum of £4850.”

Mr Waddell on the other part made the following provision:—“For which causes, and on the other part, the said William Waddell hereby dispones and conveys to the said Christian Margaret Waddell in liferent, and to the heirs-male of this present marriage, other than the heir-male succeeding to the said estates of West Quarter and Bedlormie, in fee, whom failing to the heirs-female of the marriage, whom failing to the said William Waddell's heirs or assignees, whom failing to the said Christian Margaret Waddell, her nearest lawful heirs and assignees whomsoever, the eldest heir-female throughout the whole course of succession excluding heirs-portioners, and succeeding always without division, the husbands of such heirs-female being bound to bear, use, and retain the name and designation of Waddell of Easter Moffat in addition to the name of Livingstone, except in the event of the same heiress—female succeeding to both the estates of Bedlormie and Easter Moffat, in which case the husband of such heiress shall be bound to quarter the arms of Waddell of Easter Moffat with those of Livingstone of Bedlormie, and to bear, use, and retain the name and designation of Waddell Livingstone of Bedlormie and Easter Moffat, heritably and irredeemably, all and whole” the lands of Easter Moffat and others. There was reserved to Mr Waddell his own liferent of the estate, with power to work minerals and grant leases and feus, the infeftment in his favour being reserved to that extent.

It was further provided that Mr Livingstone “shall have no further concern with the rents and annual profits of the above—mentioned lands,” and he renounced and made over to Miss Waddell, and the heirs above mentioned, his jus mariti and courtesy. There was a provision that “It shall not be in the power of the said Christian Margaret Waddell to convey, assign, renounce, or restrict the provisions hereby settled on her; and the said William Waddell obliges himself to infeft the said

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Christian Margaret Waddell in liferent, and the other heirs before mentioned in fee, under the reservations and burdens foresaid.” Lastly, Mr Waddell provided to Miss Waddell an annuity of £400 during his lifetime, “or until she shall be entitled to succeed to the liferent of the lands and estate of Easter Moffat and others before conveyed.”

By notarial instrument recorded on 16th August 1864 Mrs Christian Fenton Livingstone was infeft in the liferent of the lands and estate of Easter Moffat. Mr William Waddell and Mrs Fenton Livingstone, with consent of her husband, executed a disposition and conveyance in trust dated 9th October 1868 on the narrative of the provisions made by Mr Waddell in the antenuptial marriage-contract, and on the further narrative that “in order to provide more effectually for the management of the said lands and estate during the lifetime of” Mrs Livingstone, “and for securing the fee of the said lands and estate to the heirs of the marriage, … it has been deemed expedient and advisable that we should grant the conveyance in trust after mentioned:” Therefore they, “the said William Waddell, as heritable proprietor in fee, and I, the said Christian Margaret Waddell or Fenton Livingstone, for all right of liferent or fee or otherwise competent to me, with the special advice and consent of my said husband,” disponed to certain trustees, under reservation of Mr Waddell's liferent, the estate of Easter Moffat. The trustees were directed to hold the estate for behoof of Mrs Livingstone in liferent, and to account and pay over to her the profits thereof, and on her death “to hold the said lands, estate, and others for behoof of the heir-male of my said marriage, … other than the heir-male succeeding to the estates of West Quarter in Stirlingshire, and Bedlormie in Linlithgowshire,” and so on in terms identical with those of the marriage-contract. The trustees were further directed to “dispone, convey, and make over the said lands, estate, and others to the party entitled thereto under and in terms of the foresaid destination above written.”

Mr Waddell died in 1876 and Mr Thomas Livingstone on December 18th 1891. He was survived by his widow and two sons—John Nigel Fenton Livingstone, who was the elder, and George Frederick Fenton Livingstone. The litigation upon which Mr Thomas Livingstone's right to the estate of Bedlormie depended resulted in his acquiring the estate. It was, however, heavily burdened with debt, and having been conveyed by him to trustees, was in 1873 sold by them under the powers in the conveyance.

In 1883 an agreement was entered into between Mr Livingstone and his two sons, by which the estate of West Quarter was disentailed and convoyed to John Livingstone in consideration of certain payments made and obligations undertaken by him. The details of this agreement will be found referred to infra.

An action was raised by George Fenton Livingstone and by his mother Mrs Livingstone against the trustees acting under the trust-disposition of 1868, concluding for declarator that the pursuer George Livingstone, on the date of his father's death, became vested in the fee of Easter Moffat subject to his mother's liferent in the estate, and for reduction of the trust-disposition of 1868.

The Lord Ordinary having appointed intimation of the action to be made to John Livingstone, he craved to be sisted as a defender.

The pursuers averred that the defender John Livingstone had uniformly acknowledged George Livingstone as the owner of Easter Moffat, and specified several onerous transactions to which they maintained his consent had been obtained on that foot-They pleaded accordingly that he was barred from disputing this right.

They pleaded further—“(2) The disposition and conveyance in trust of 1868 being a variation of the terms of the said antenuptial contract of marriage, was ultra vires of the granters, and the pursuers are therefore entitled to decree of reduction as concluded for. (4) The defences stated for the defender Mr John Livingstone should be repelled in respect—(1st) That on a sound construction of the said antenuptial contract of marriage the pursuer was ascertained as at the date of his father's death to be the heir-male of the marriage, other than the heir-male succeeding to the estates of West Quarter and Bedlormie, within the meaning of said contract; (2nd) that a transaction between the heir entitled to West Quarter under said contract and Mr Thomas Livingstone cannot affect the rights under said contract of other beneficiaries without their consent; (3rd) that by the propulsion of the fee of West Quarter to Mr John Livingstone, the latter has succeeded thereto within the meaning of said contract; (4th) that the inclusion of the lands of Bedlormie among the estate settled by said contract was contingent only on their being successfully vindicated for Mr Thomas Livingstone, and that the said lands when acquired were so burdened by the expense of vindicating the same and otherwise as to necessitate their being sold.”

The trustees maintained that the deed of 1868 was a valid deed, and that they were bound by its terms to hold the estate until the death of Mrs Livingstone.

The defender John Livingstone maintained that he had not succeeded to the estates of West Quarter and Bedlormie, or to either of them, within the meaning of the destination in the marriage-contract, and that accordingly he was entitled to the estate of Easter Moffat; that Mr Thomas Livingstone had never fulfilled the obligation to convey to him the estate of Bedlormie, but had sold it and applied the proceeds in paying the debts secured on it, and to his own purposes; and that the agreement as to the purchase by him of West Quarter had only been extracted from him by severe pressure from his father, the consideration given by him representing the full value of the estate

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without reference to his right of succession.

The Lord Ordinary ( Low) on the 13th July 1895 pronounced the following interlocutor:—“Finds that upon a sound construction of the marriage-contract entered into between the deceased Thomas Livingstone Fenton Livingstone on the one part, and the deceased William Waddell and the pursuer Mrs Christian Margaret Waddell or Fenton Livingstone on the other part, the pursuer George Frederick James Fenton Livingstone became entitled upon the death of the said Thomas Livingstone Fenton Livingstone to the fee of the estates of Easter Moffat, subject to the liferent of the said estate conferred upon the said pursuer Mrs Thomas Livingstone Fenton Livingstone by the said marriage-contract: Therefore finds, decerns, and declares in terms of the declaratory conclusions of the summons: Finds that the fee of said estate of Easter Moffat having by the said marriage-contract been disponed to the heir-male of the marriage other than the heir-male succeeding to the estate of West Quarter and Bedlormie, it was ultra vires of the said Thomas Livingstone Fenton Livingstone, Mrs Christian Margaret Waddell or Fenton Livingstone, and William Waddell, subsequently to the marriage, and after children had been born, to dispone the fee of said estate to trustees, to the effect of putting the same under the trust after the ascertainment of the heir-male of the marriage entitled to the said fee, by the dissolution of the marriage: Finds that the pursuer George Frederick James Fenton Livingstone having, in the event which has happened, become entitled to the fee of said estate upon his father's death, has a title to sue for reduction of the disposition in trust of said estate of 9th October 1868, in so far as the fee of said estate is thereby vested in trustees after the said pursuer became entitled thereto: … Finds that it was not ultra vires of the granters of the trust-disposition of 1868 to dispone the said estate to trustees for the purpose of holding the same during the subsistence of the marriage and for the purpose of holding and administrating the liferent thereof for behoof of the said Mrs Christian Margaret Waddell or Fenton Livingstone after the dissolution of the marriage and during the lifetime of the said Mrs Christian Margaret Waddell or Fenton Livingstone: Therefore, as regards the liferent right of the said Mrs Christian Margaret Waddell or Fenton Livingstone in said estates, dismisses the reductive conclusions of the summons, and decerns: Reserves in the meantime the question of expenses.”

Opinion.—“The summons in this case concludes in the first place for declarator that the pursuer George Livingstone became at the date of his father's death vested, in terms of the antenuptial contract between his father and his mother (Mrs Livingstone, the other pursuer), in the fee of the lands of Easter Moffat, subject to the liferent of the lands conferred upon Mrs Livingstone by the marriage-contract. The summons then concludes for reduction of a conveyance granted subsequently to the marriage of Mrs Livingstone and her deceased husband, whereby the lands of Easter Moffat were disponed to trustees for the purpose of holding the estate for Mrs Livingstone in liferent, and upon her death for the heir-male of the marriage other than the heir succeeding to the estates of West Quarter and Bedlormie.

The summons therefore is framed as if the sole object of the action was to vindicate the right of George Livingstone to the fee of Easter Moffat. It was argued, however, that under the marriage-contract the fee of the estate was given to Mrs Livingstone, and that therefore the trust-conveyance fell to be reduced as being ultra vires of the granters. Of course if the fee is in Mrs Livingstone, declarator cannot be granted in terms of the leading conclusion of the summons, but apparently the main object of the pursuers is to have the trust set aside and to obtain possession of the estate.

The question as to whether Mrs Livingstone is in right of the fee of the estate depends upon the construction of the antenuptial marriage-contract between her and her late husband Thomas Livingstone.

The marriage contract was entered into in 1853, and the parties to it were Thomas Livingstone on the one part, and the pursuer Mrs Livingstone and her father Mr Waddell of Easter Moffat on the other part.

Thomas Livingstone was heir of entail in possession of the estate of West Quarter, under a destination to him and the heirs-male of his body. He had also the prospect of succeeding to the estate of Bedlormie (which at the date of the marriage-contract was the subject of a litigation), and in the event of the estate coming to him he bound himself to settle it upon the heirs-male of his body, ‘so as the heir-male of his body may re-unite in his person the said estate of Bedlormie with the said entailed estate of West Quarter.’

Mr Waddell on the other part disponed and conveyed his estate of Easter Moffat to Mrs Livingstone, ‘in liferent and to the heirs-male of this present marriage, other than the heir-male succeeding to the said estates of West Quarter and Bedlormie in fee, whom failing to the heirs-female of the marriage, whom failing to the said William Waddell's heirs or assignees, whom failing to the said Christian Margaret Waddell, her nearest lawful heirs and assignees whomsoever.’

Mrs Livingstone contends that under that destination she took the fee of Easter Moffat, because the conveyance was to her in liferent, and to her children nascituri in fee, without restriction of the liferent by the word ‘allenarly,’ or any similar expression.

Whether that argument is or is not well founded depends upon the construction of the contract as a whole.

It is evident that the intention was to keep the Livingstone and Waddell estates separate, and to prevent the Waddell estate from being merged in and swamped by the

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Livingstone estate. If Mrs Livingstone was given only a liferent, and the fee was given to the heir-male of the marriage other than the heir who should take the Livingstone estates, that object was secured in the event of there being more than one son. If on the other hand a fee was given to Mrs Livingstone the object was not secured at all. Again, failing heirs-male of the marriage, there is a further destination of the fee, the third branch of which is to Mrs Livingstone, her heirs and assignees whomsoever. That destination is inconsistent with the idea that a fee had already been given to her. Again, Mr Waddell bound himself to infeft Mrs Livingstone in liferent, ‘and the other heirs before mentioned in fee,’ and certain persons are named at whose instance execution is to pass for implement of the whole provisions of the marriage-contract. Finally, it was provided that it should not be in the power of Mrs Livingstone to convey, assign, renounce, and restrict the provisions thereby settled upon her, and Mr Waddell bound himself to pay to Mrs Livingstone during his life, ‘or until she shall be entitled to succeed to the liferent of the lands and estate of Easter Moffat,’ an annuity of £400. I think that the word liferent is there clearly used in its natural sense.

Taking all these passages of the marriage-contract together, I am of opinion that they show that the intention was that Mrs Livingstone should have no more than a liferent.

The next question, is whether George Livingstone became entitled to the fee of Easter Moffat upon the death of his father, which occurred in 1891?

The circumstances under which the question arises are as follows:—The estate of Bedlormie actually came into possession of Thomas Livingstone, the father, but it was heavily burdened with debt and was sold in 1873, apparently by trustees to whom he had conveyed with power to sell.

In 1883 Thomas Livingstone had made contracts for building a new mansion-house on West Quarter, but he had not the means to carry out the contracts. Accordingly he entered into an agreement with his sons, the pursuer George Livingstone and the defender John Livingstone, whereby they provided, or became bond for, the funds necessary to complete the house, and came under other obligations to their father; and he, on the other hand, conveyed West Quarter to his eldest son John Livingstone.

The latter, therefore, never succeeded to Bedlormie, and although he is in possession of West Quarter, he is so by virtue of a transaction with his father, and not as his father's successor under the entail. John Livingstone therefore contends that he, and not his brother George, became entitled to the fee of Easter Moffat upon the death of their father, in terms of the destination in the marriage-contract.

The words in the marriage-contract upon which John Livingstone relies are—‘and to the heirs-male of this present marriage, other than the heir-male succeeding to the said estates of West Quarter and Bedlormie.’ He argued that under that destination the heir-male of the marriage took Easter Moffat if he did not succeed both to West Quarter and Bedlormie. As his father had sold Bedlormie, he was not in that position, and was therefore entitled to Easter Moffat. But even if it should be held that succession to West Quarter alone would have barred him from taking Easter Moffat, he was still entitled to the latter estate, because he acquired West Quarter by purchase, and what the marriage-contract contemplated and provided for was taking by succession and by succession only.

In considering that argument I think that the object (to which I have already referred) which the parties to the marriage-contract, and especially Mr Waddell, had in view in regard to Easter Moffat is of importance.

As I have already said, Mr Waddell's object was to keep his estate separate from the Livingstone estate, and accordingly he provided that it should pass to a son other than the son taking the Livingstone estate; and that the son who should become entitled to Easter Moffat should take the name of Waddell.

Now, the narrative of the marriage-contract shows that it was possible that Bedlormie might never come into the possession of Thomas Livingstone. Whether it would do so or not depended upon the result of pending litigation. If Bedlormie had never come into the possession of Thomas Livingstone, and John Livingstone had succeeded to West Quarter only, could be have claimed Easter Moffat? I think that it is almost certain that Mr Waddell did not intend that he should do so, but of course whatever Mr Waddell's intention was, the words of disposition used in the marriage-contract must receive effect. It seems to me, however, that the words used are, when read with the context, capable of being construed in a sense consistent with what I take to be Mr Waddell's intention. The words are—‘Other than the heir-male succeeding to the said estates of West Quarter and Bedlormie.’ The ‘said estates’ had formed the subject-matter of the previous part of the contract, and had been destined to the heirs-male of the body of Thomas Livingstone ‘so as the heir-male of his body may reunite in his own person’ the two estates. The object therefore was to unite in the same heir these two estates, which I have called the Livingstone estate. I therefore think that the words ‘the said estates of West Quarter and Bedlormie,’ are just a description of the Livingstone estate which the heir-male of the body of Thomas Livingstone was to take, and that the meaning of the destination of Easter Moffat is that the heir-male of the marriage who is to take Easter Moffat is not to be the heir who takes the Livingstone estate. Therefore if Bedlormie had never come into the family it seems to me that West Quarter would have gone to John and Easter Moffat to George, and I do not think that the fact that Bedlormie came into the family and was afterwards sold makes any difference, because a sale

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by Thomas Livingstone—in breach it may be of his contract—cannot affect the rights of George under Mr Waddell's disposition.

Then as regards the argument that John has not succeeded to West Quarter, I think that the answer is that he did not succeed to it simply because he chose to enter into a transaction under which the fee was propelled to him during his father's lifetime. Such a voluntary transaction could not in any case alter George's rights under the marriage-contract, and it is somewhat remarkable that George was made a party to the transaction, and undertook heavy liabilities under it, upon the footing that Easter Moffat was secured to him.

I am therefore of opinion that George, and not John, became entitled to the fee of Easter Moffat, and I do not think that it can be disputed that vesting took place at the date of Thomas Livingstone's death, because it was then that the heir-male of his body and of the marriage was ascertained. I shall therefore give decree in terms of the declaratory conclusions of the summons.

The remaining question is as to the right of the pursuer to have the conveyance in trust of Easter Moffat reduced, as having been ultra vires of the granters. The conveyance was granted in 1868 by Mr Waddell, Mrs Livingstone with consent of her husband, and the latter for himself, and proceeded upon the narrative of the marriage-contract, and that it was expedient that the trust should be granted in order to provide more effectually for the management of the estate during the lifetime of Mrs Livingstone, and for securing the fee to the children of the marriage.

I think that it was quite competent for the parties to constitute a trust for management of the estate during the subsistence of the marriage, and for the protection of Mrs Livingstone's liferent, but they could not, in my judgment, limit or curtail the rights given by the marriage-contract to the heirs—male of the marrirge,

Now, George Livingstone was—if the construction which I have put on the marriage-contract is sound—entitled from the date of his father's death to the enjoyment of the fee of Easter Moffat, limited only by his mother's liferent of the estate. It was not, in my opinion, in the power of Mr and Mrs Livingstone and Mr Waddell, after the marriage, and after the children of the marriage had come into existence, to interpose a trust which would prevent George Livingstone exercising all the rights of a fiar of an estate burdened with a liferent,—such rights, for example, as opening up and working minerals. The parties to the trust-deed were entitled to put the estate in trust during the subsistence of the marriage, and as Mrs Livingstone was a party to the deed, it was also competent to create a trust to protect her liferent. But beyond that I think that the trust was ultra vires. Standing the trust, George Livingstone is restrained in the exercise of rights which would be available to him as a fiar if no trust had been interposed, and under the marriage-contract he is, in my opinion, entitled to the rights of a fiar without any interposed trust.

The natural result of that view would, I think, be that George Livingstone would be entitled to have the disposition of 1868 reduced in so far as it puts the fee of the estate in trust during his mother's lifetime.…

The question of the reduction of the trust at the instance of Mrs Livingstone is a different matter. As I have said, I think that it was competent to constitute a trust for the protection of Mrs Livingstone's liferent. Whether she can recal the trust now that the marriage is dissolved is a different question, upon which I offer no opinion. That question has not been argued, and it is not within the present action, which seeks for reduction of the trust solely on the ground that it was ultra vires of the granters.”

On the 24th October 1895 the Lord Ordinary (Low) pronounced this further interlocutor—“… Finds of new that the said pursuer is entitled to have the trust-disposition of the estate of Easter M off at, mentioned in the summons, reduced and set aside, in so far as the fee of the said estate was vested in trustees after the death of the said pursuer's father Thomas Livingstone Fenton Livingstone, to the effect that the said pursuer may have and exercise the rights and powers in regard to the said estate of an absolute fiar whose right is burdened by a liferent; to that extent, but to no greater extent, reduces, decerns, and declares in terms of the reductive conclusions of the summons: Finds the pursuer entitled to expenses against the compearing defender John Nigel Edensor Fenton Livingstone since 22nd January 1895: Allows an account thereof to be given in,” &c.

The defender John Livingstone reclaimed.

After sundry procedure the Court allowed the parties a proof, which was directed to the facts and circumstances of the sale of West Quarter. These appear, so far as necessary, in the opinion of Lord M'Laren, infra.

Argued for the pursuers—1. The terms of the marriage-contract showed plainly that the liferent given to Mrs Livingstone did not carry with it a right of fee. Reading the contract as a whole, it was evident that “liferent” was used in its natural meaning, and the rule in Frog's case, upon which the trustees relied, would not be extended to cover such a case as this, where the effect of the various clauses in the contract was that “allenarly” was implied though the word was not actually used— Maule, June 14, 1876, 3 R. 831; Mackellar v. Marquis, Dec. 4, 1840, 3 D. 172; Ramsay v. Beveridge, March 3, 1854, 16 D. 764; Milter v. Miller, Nov. 14, 1833, 12 S. 31; Newlands v. Newlands' Executor, April 26, 1798, 4 Paton App. Ca. 43. Even if there were a fee in Mrs Livingstone, there was a protected succession, and nothing she could do would deprive George of his right. The trustees had no right to raise the question, since all the parties interested came and asked them to

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put an end to the trust. 2. The words in the marriage-contract, “other than the heir succeeding to West Quarter and Bedlormie,” were merely descriptive, and were not conditional. The meaning of the clause was the heir succeeding to the Livingstone estates—that is, the heir who was regarded by the framers of the marriage-contract as entitled to succeed to these estates— Inglis v. Gillanders, Jan. 19, 1895, 22 R. 266. If Mrs Livingstone had predeceased her husband, could it be said that John could claim the estate of Easter Moffat, because he had not yet succeeded to West Quarter and Bedlormie? The scheme of the contract was to reunite Bedlormie and West Quarter if possible in the heir-male of the present marriage, and Easter Moffat was to go to the heir-male other than the heir who was regarded by the framers of the contract as being the natural successor to the former estates. According to the argument used in favour of John's claim, “succeeding” must be interpreted as “who shall actually succeed to,” which was a strained and unnatural meaning. It was clear that it could not have been intended to apply to Bedlormie, for that estate might never have come into the possession of Thomas Livingstone at all had the pending litigation resulted unfavourably, But though his father did come into possession of Bedlormie, and it was sold to pay his debts, that could not affect George's rights. John might have had a remedy against his father for breach of the contract, and at his death claimed compensation in lieu of the estate, or possibly he might have prevented the sate— Cunningham v. Hathorn, Dec. 20, 1810, F.C.; Ersk. iii. 8, 38. 3. The transaction entered into about West Quarter amounted, as the Lord Ordinary said, to a case of propulsion. It was not relevant to inquire whether John made a good or a bad bargain. He chose to give up what may have been a valuable right of succession, and signed the agreement voluntarily, and that being so his action could not affect George's right— Pirie v. Pirie, July 19, 1873, 11 Macph. 941.

Argued for defender John Livingstone—1. It was clear that the parties to the marriage-contract contemplated that the children would actually take different estates. But the argument of the pursuer was based on the assumption that “succeeding” might in certain events be equivalent to “not succeeding,” and that “and” was equivalent to “or.” That was an unnatural and forced construction, which would result in John being the only person not benefited by the marriage-contract, and it would only be given effect to if it was clearly and indubitably shown to be the meaning of the clause, either from the deed itself or from extrinsic evidence showing that the natural meaning of the words was not the true one. It was not enough for the pursuer to say that “succeeding” was equivalent to “entitled to succeed,” for at the dissolution of the marriage both the estates of Bedlormie and West Quarter had passed out of the family, and so John was not “entitled to succeed” to them. Accordingly for their argument it would be necessary to make “succeeding” mean “who would be entitled to succeed if the estates remained in the family.” The true meaning of the clause was that if he did not actually succeed to either estate then John was entitled to take Easter Moffat. There was nothing in the deed to support the Lord Ordinary's interpretation of the expression as meaning only “the Livingstone estates,” and his view that the object of the settlement was to keep the Livingstone and the Waddell estates separate. On the contrary, there was a provision as to the quartering of arms by the husband of an heiress succeeding to both Bedlormie and Easter Moffat. But in any view, the Court had not to consider the motive, but to interpret this clause— Inglis v. Gillanders, supra. 2. As to John having by his own act prevented his succession, in the case of Bedlormie, he had no power to prevent the sale, and no right to the proceeds of the sale as surrogatum— Cunninghame v. Hathorn, supra. As regards West Quarter, it was not, as the Lord Ordinary said, a case of propulsion, but it was proved that there had been a transaction for an adequate consideration, John having paid the full value of the estate, which made the question quite different. Nor was it a voluntary purchase by John; he knew it was a very bad bargain for him, and was induced to make it to relieve his father's embarrassments. Moreover, it would have been in his father's power, or in that of creditors, to force a disentail on paying him out. Accordingly, the pursuer could not found on it as a voluntary transaction— Paterson v. M'Ewan's Trustees, March 18, 1881, 8 R, 646.

Argued for the trustees—The effect of the marriage-contract provision was to confer a fee upon Mrs Livingstone, and accordingly she had a right to grant the trust-deed. The rule in Frog's Creditors v. His Children 1735, M. 4262, 3 Ross' L.C., Land Rights, 602, that estate destined in general terms to children nascituri in fee was held to vest in the parent to whom there was nominally given an estate of liferent, would be applied unless there was something equivalent to “allenarly” in the gift of liferent— Dewar v. M'Kinnon, May 5, 1825, 1 W. & S. 161; Mackintosh v. Gordon, April 17, 1845, 4 Bell's App. 105. The only point against this contention was the clause in the marriage-contract as to infeft ing Mrs Livingstone in liferent and the heirs in fee, but once having conferred the fee the granter had no power to whittle it down— Douglas Trustees v. Kay's Trustees, December 2, 1879, 7 R. 205; Clouston's Trustees v. Bullock, July 5, 1889. 10 R. 937; Gibson's Trustees v. Ross, July 12, 1877, 4 R. 1038. The case of Maule founded upon by the pursuer was decided on the ground that it was expressly declared that the beneficiaries were “merely” liferenters, which was equivalent to a liferent allenarly. Accordingly, the trust-deed was within the powers of Mrs Livingstone, its object being to carry out and secure what was incomplete in the marriage-contract. It was not a revocable deed but an irrevocable postnuptial provision. The date of ascertaining

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the heir was postponed till Mrs Livingstone's death, and the trust must subsist till then.

At advising—