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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sands v Brisbane [1835] CA 13_1040 (4 July 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1040.html
Cite as: [1835] CA 13_1040
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SCOTTISH_Shaw_Court_of_Session
Page: 1040↓
v.
Subject_Entail—Clause—Provisions to Children.—
Terms of a trust-deed of settlement and relative codicil executed by the maker of an entail, under which it was held, that the deficiency of a fund destined to meet certain legacies, annuities, and provisions, was intended to form a burden on the entailed estate, and be kept up as a charge against it; but that two annuities of £200 each, payable to the testator's younger daughters while unmarried, were to be paid by the heir of entail without relief against succeeding heirs.
Sequel of the case reported, ante, XII. 355, Jan. 29,1834, which see. In the farther disposal of the cause, some questions of a special nature arose. Sir Henry Makdougall, by his bond of 1811, “for the better support of his two younger daughters while they remain unmarried,” provided not only a capital sum of £4600 between them, but also an annuity of £200 to each of them, payable termly after his death. By his trust-deed of 1823, quoted in the previous report, he declared the purposes of the trust to be, that Warren Hastings Sands, W.S., his trustee, should pay, 1st, His debts and trust-expenses; 2d, All legacies loft, or to be left; and 3d, The provisions to the younger daughters. If the trust-effects should “fall short of answering any part of the foresaid purposes, then I hereby declare and appoint the same to be held as real burdens upon my foresaid entailed estate, and the heirs of entail in possession succeeding thereto.” By a subsequent codicil, Sir Henry left some farther legacies, and bequeathed a special part of the trust-effects (the Roxburgh succession) to Lady Brisbane, the first heir of entail, under the burden of the “debts due by bond, bill, or account-current, and funeral expenses.” The Court, in reference to the extent to which the Roxburgh succession was so burdened, pronounced this interlocutor:—“Prefer Lady Brisbane to the share of the residue of the succession of the late John Duke of Roxburgh, left and bequeathed by him to the now deceased Sir Henry Hay Makdougall, after deducting Sir Henry's debts, due by bond, bill, or account-current, and his funeral expenses: Find, that under the debts to be deducted as aforesaid, there are not comprehended the provisions granted by Sir Henry to his younger children, either by his contract of marriage, or by the bond executed by him in their favour on the 20th day of July, 1811: Find the expenses incurred by the parties in disposing of the point submitted to the Court to be a burden upon the share of the residue found to belong to Lady Brisbane as aforesaid, and remit to the Lord Ordinary to proceed farther in the cause as to him shall appear just.”
After paying the Roxburgh succession, there was a short-coming of trust-funds to meet the trust-purposes. Lady Brisbane contended that the whole of such short-coining, however it arose, was to be made a real burden on the entailed estate. This was conform to the declaration in the twist-deed, and the codicil had not altered it; and, therefore, not only the legacies paid out of the rents of the estate subsequent to her succession, but also the annuities of £200 each, paid to her younger sisters, should be kept up and charged as a debt against the entailed estate.
Her son, Thomas Australia Brisbane, the next heir, contended, on the other hand, that even the legacies should not be so kept up, as it could not be the testator's intention, in leaving legacies, to make them permanent burdens on the entailed estate. The words of the codicil varied from the trust-deed, and favoured this view. But, at least, the annuities to the Misses Makdougall, both from their temporary nature, and from the tenor of the whole deeds of settlement viewed together, and bestowing an estate of £3000 per annum on the eldest daughter, were not intended to become a charge on the entailed estate. The annuities should stand on the same footing with the interest of the capital sum of £4600, provided to the same ladies, and both be paid without relief from the succeeding heirs of entail.
The Lord Ordinary found, ”.that from the trust-estate of Sir Henry Hay Makdougall are to be deducted, first, his debts, if any, not affecting Lady Brisbane's share of the Duke of Roxburgh's succession, in terms of the interlocutor of the 29th January, 1834. Secondly, The legacies and annuities left by his settlements to others, exclusive of his younger daughters. Thirdly, The provisions to his younger daughters; and finds, that the deficiency, together with the annuities left to the younger daughters, while they continue unmarried, form a burden upon the entailed estate, for which the said Lady Makdougall Brisbane, as heir of entail in possession, is liable: Finds that the said Lady Makdougall Brisbane is bound to pay the interest of the sums found to be a burden on the entailed estate, and also the annuities that fall due to the younger daughters de anno in annum, while she continues in possession, without relief from the succeeding heirs of entail; but if she pay any part of the principal sums found to be a burden on the estate, she is entitled to demand an assignation from the creditors, that it may be kept up as a debt against the estate.”
Lady Brisbane reclaimed.
The Court adhered. *
Solicitors: W. H. Sands, W.S.— A. Scot, W.S.— Patrick and Crawford, W.S.—Agents.
_________________ Footnote _________________
* Another special point was also argued, whether Lady Brisbane was bound to impute the value of certain furniture, wines, &c. expressly bequeathed to her, before throwing the deficiency on the entailed estate. The Court held her not bound to do to.