Subject_1 HERITABLE and MOVEABLE. Subject_2 SECT. XXVIII.
Effect of disposition of heritable subjects to trustees.
John Davidson v. Alexander Kyde, and Others
Date: 20 December 1797 Case No. No 142.
A gentleman in the East Indies having remitted money to his attornies in Britain, with discretionary powers as to the mode of securing it, and they having, with his approbation, taken heritable bonds in Scotland, payable to themselves, in trust for him, it was found that he could not dispose of the money, so secured, by a testament.
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Colonel Kyde remitted money from the East Indies to his attornies in England, with discretionary powers as to the mode of securing it, though with a preference to landed security. The attornies lent L. 5,500, on two Scots heritable bonds, payable to themselves, ‘in trust,’ for Colonel Kyde, upon which infeftment followed.
The attornies mentioned these bonds in the annual accounts of their management, which they transmitted to Colonel Kyde, and he approved of their conduct.
Colonel Kyde died in India many years afterwards. A few months before his death, he had executed a testament in the English form, by which his whole property, after payment of legacies, &c. was bequeathed to Major Alexander Kyde.
Mrs Dickson, the Colonel's heir at law, (to whom L. 500 were left by the will,) and her husband for his interest, with a view to attach the sums contained in the heritable bonds above mentioned, as not affectable by a testament, granted a trust-bond to John Davidson, who, after obtaining decree of constitution and adjudication against them, brought a declaratory action against the debtors in the bonds, and the executors of Colonel Kyde.
A declarator was likewise brought by Major Kyde, in order to have his right to the bonds, under the will, ascertained; and a multiplepoinding by the debtors in them.
John Davidson
Pleaded: As the bonds were taken payable to the attornies, in trust for Colonel Kyde, and with his approbation, the case is the same as if they had been made payable directly to himself. An action might have, indeed, been necessary, to force the trustees to denude, but the heritable right was substantially vested in the Colonel.
If he had died intestate, the subject would have gone, not to his executor, but to his heir, who, consequently, cannot be deprived of her right by testament; Durie against Coutts, No 140. p. 5595.
Answered; Colonel Kyde, by the instructions given to his attornies, had no view of affecting his succession. His object was to have his money properly secured. Nor does it alter the question, that he was informed of the security taken, which might have been changed by the act of the debtor, or of the attornies, who had no right to regulate his succession.
The feudal right, too, was vested in the trustees, and the Colonel had merely a personal right to call them to account, which might be exercised in a testament; 25th February 1780, Grierson against Ramsay, No 84. p. 759.
Besides, the will may be considered as a declaration of the purposes of the trust, which is effectual if executed secundum legem loci.
The Lord Ordinary preferred Major Kyde; but upon advising a reclaiming petition, with answers, it was
Observed; The security was taken with the approbation of Colonel Kyde. He must be presumed to have known the consequences; and as, ex facie of the bonds, it appeared that they were held in trust for him, the question is the same as if they had been taken payable directly to himself, and very different from that where a subject is vested in trustees, for the purposes there expressed, and others to be afterwards declared by the truster.
The Lords unanimously found, “That the money in question being settled upon heritable security in Scotland, with the approbation of Colonel Kyde, cannot pass by will, but falls to be taken up by the heir-at-law.”
A reclaiming petition was refused, (25th January 1798,) without answers.
Lord Ordinary, Stonefield.For Davidson, Montgomery.Alt. Rolland, Geo. Fergusson.Clerk, Gordon.
Fac. Col. No 52. p. 118.
