Scottish Court of Session Decisions

The late Robert Ker of Argrennan died in 1854, leaving a trust-deed by which he directed his trustees to convey the estate of Argrennan to his

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eldest son, Robert Ker, junior, on his attaining the age of twenty-five years; but there was a declaration in the deed that in the event of his said son marrying or otherwise conducting himself so as not to merit the approbation of the trustees, the provisions made in his favour should only belong to him in liferent; and it was declared that a regular minute should, in that event, be entered in the sederunt-book of the trustees, expressing their disapprobation.

On 18th June 1861, about a fortnight before the son attained twenty-five years, the trustees entered in their sederunt-book a formal minute expressing their disapprobation of his conduct, and their resolution to restrict his right to a liferent. This minute of restriction was held to be formal and binding by a previous judgment in this case, affirmed by the House of Lords.

The question now before the Court had therefore reference only to the rents of the estate.

These were claimed—(1) by Major Thomas Montagu M. Weller, sole accepting trustee under an antenuptial contract of marriage betwixt Robert Ker, junior, and his wife, dated and intimated to the trustees in 1858; and (2) by Walter Justice (and his assignees, the Caledonian Insurance Co.), to whom Robert Ker, junior, had in 1860 granted, for onerous causes, a disposition and conveyance of the estate, and all his right and interest therein.

By the antenuptial contract of marriage Robert Ker, junior, conveyed to the trustees therein named, “All and Whole my entire right and interest, present and future, under the said trust-disposition and deed of settlement, and codicils thereto, of my said deceased father; and in particular, without prejudice to the said generality, all my right and interest in the said estate of Argrennan and others described in the said trust-disposition and settlement, as follows:— videlicet, All and Whole [ Here follows description of land and estate of Argrennan], with the interests, rents, and proceeds thereof, which may become due to me under the said deed of settlement, or out of the said estates, and to all other estates or effects which belonged to my said father, which I am or may become entitled to in any manner of way.” The first and second purposes of the trust were to pay the expenses of the trust and the husband's debts then due. The third purpose was in these terms:—“That my said trustees shall make payment to me, during the subsistence of the said intended marriage with the said Elizabeth Hester Rosetta M'Alpine, and in the event of my surviving her, to me thereafter, during the remainder of my life, half-yearly, or at such times and in such manner as my said trustees shall find most suitable, of the free balance which shall arise after payment of all public burdens, taxes, expenses, debts, and other burdens upon the annual accounts of their intromissions with the funds and estate hereby conveyed.” And the fourth purpose was—“In the event of my predeceasing the said Elizabeth Hester Rosetta M'Alpine, for payment to her during all the days of her life of the foresaid liferent annuity of £400 sterling, payable at the terms, in the manner, and with the penalties and interest before specified.” The marriage-contract contained a declaration—“That the said balances payable to me, and the said jointure payable to the said Elizabeth Hester Rosetta M'Alpine, in the event of her surviving me, shall be strictly alimentary, and shall not be liable for my or her debts or deeds, nor subject to the diligence of my or her creditors, and that the same shall not be arrestable on any account whatever, and that it shall not be in my or her power to dispose thereof by anticipation, or to deprive ourselves of the benefit thereof by mortgage charge, burden, sale, assignation, or otherwise, in the way of anticipation, but that the same shall be reserved for my and her own personal maintenance, and as an alimentary provision allenarly.”

The disposition and conveyance in favour of Mr Justice, after narrating Mr Ker, senior's, trust-deed and the marriage-contract, thus proceeded:—“Also considering that Walter Justice, Esq., of No. 6 Bernard Street, Russell Square, London, solicitor, has agreed to purchase from me, at the price of £2000 sterling, the said lands of Argrennan and others, and all my right, title, and interest, present, future, and contingent therein, and rents thereof, and the whole rights, interests, household furniture, silver plate, and other moveables belonging to me now, and which may in future belong to or be claimable by me under the said trust-disposition and settlement of my said father, and codicils thereto, and also under the said marriage-contract or settlement respectively, and all claims and demands belonging or competent to me now, or which may hereafter belong or be competent to me against the respective trustees named in and acting under the said several deeds; and that I have agreed to sell the said lands and others absolutely and irredeemably to the said Walter Justice for the price aforesaid, which I consider just and adequate; and now seeing that the said Walter Justice has instantly advanced and paid to me the said sum of £2000 sterling, of which I do hereby acknowledge the receipt, renouncing all exceptions to the contrary, and of which I discharge him; therefore I, the said Robert Ker, do hereby sell, dispone, assign, transfer, and convey to and in favour of the said Walter Justice, and his heirs and assignees whomsoever, absolutely, heritably, not irredeemably, not only All and Whole [ Here follows description of lands and estate of Argrennan,] with all my right, title, and interest, present, future, and contingent therein: But also All and Whole the entire rights, claims, and interests to which I am now entitled, or to which I shall be entitled when I shall have attained twenty-five years of age as aforesaid, or at any future time, in and to the residue and remainder of the estates heritable and moveable, real and personal, of my said deceased father, under his said disposition and deed of settlement and codicils, including the household furniture, silver plate, and other moveables in the mansion-house of Argrennan, which belonged to my said father, and all my contingent or future rights and interests in and to the foresaid provision of £14,000, and all interest to become due thereon: And also all my rights, interests, estates, benefits, and advantages in the whole estates, sums of money, provisions, and others to which I have now or may hereafter have right by and under my said marriage-contract or settlement, with the whole interests, rents, and proceeds respectively of the said lands and several rights, interests, estates, and others above conveyed by me, which are now or may hereafter become due to me under the said disposition and deed of settlement, and codicils thereto, and marriage-contract or settlement, or out of the said estates, rights, and others above conveyed.”

The Lord Ordinary (Kinloch), after hearing parties in the competition, pronounced the following interlocutor:—

Edinburgh, 17 th January 1866.—The Lord Ordinary having heard parties’ procurators in the competition between the claimant Captain Thomas

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Montagu Martin Weller, trustee under the marriage-contract of Robert Ker, junior, and Elizabeth Hester Rosetta M'Alpine or Ker, his wife, and the claimants Walter Justice and the Caledonian Insurance Company—Finds that the said Walter Justice, and the said Insurance Company in his room, are entitled, by virtue of the deed executed in favour of the said Walter Justice by the said Robert Ker, junior, bearing date 28th July 1860, and to the extent of the interest constituted by said deed, to be ranked and preferred to the rents, interests, and annual profits of the trust-estate of the deceased Robert Ker in the hands of the raisers, in preference to the said Captain Weller as trustee foresaid; and appoints the cause to be enrolled in order that effect may be given to this finding.

“ W. Penney.

“ Note.—It is now settled in the present process that Robert Ker, junior, is, under his father's settlements, only entitled to a liferent of the trust-estate in the hands of the raisers.

By his antenuptial contract of marriage with Miss M'Alpine, dated 18th September 1858, Mr Robert Ker, junior, made over his interest in this trust-estate to the claimants, Captain Weller and others, as trustees for the trust-purposes specified in the deed. The first purpose of the deed is payment of trust-expenses, and of certain debts then owing by Mr Ker, junior, to an extent not exceeding £2000. The next purpose is ‘That my said trustees shall make payment to me during the subsistence of the said intended marriage with the said Elizabeth Hester Rosetta M'Alpine, and, in the event of my surviving her, to me thereafter, during the remainder of my life, half-yearly, or at such times and in such manner as my said trustees shall find most suitable, of the free balance which shall arise after payment of all public burdens, taxes, expenses, debts, and other burdens upon the annual accounts of their intromissions with the funds and estate hereby conveyed.’ Provision is also made for the payment by the trustees, out of the estate conveyed, of a jointure to Mrs Ker, in the event of her surviving her husband, of £400 per annum, and of certain sums to the children of the marriage.

The marriage-contract and assignation contained in it were intimated to the raisers, the trustees of Mr Ker's father, on 6th and 7th December 1858.

Nearly two years after this date, being on 28th July 1860, Mr Robert Ker, junior, executed a deed in favour of the claimant Walter Justice, by which, on the narrative of a certain sum advanced to him, he conveyed to Mr Justice the whole of his rights in his father's trust-estate, and the whole of his rights under the antenuptial contract with his wife, and the whole of his claims, either against his father's trustees or the trustees in this antenuptial contract.

The question now is, whether Captain Weller, as trustee in the antenuptial contract, or Mr Justice, by virtue of this last-mentioned deed (the Caledonian Insurance Company being Mr Justice's assignees), is entitled to be preferred to the rents and annual profits of old Mr Ker's trust-estate in the hands of the raisers.

It appears to the Lord Ordinary that Mr Justice is entitled to prevail in this competition. He has had expressly assigned to him all Mr Robert Ker's rights in the trust-estate of his father, so far as Mr Ker could competently assign such rights. The Lord Ordinary perceives no legal objection to Mr Ker assigning his liferent interest in that estate. It was a right held by him absolutely, and for his own behoof. Though he assigned his rights in his father's trust-estate to his marriage-contract trustees, the object of the trust was, during his own life, simply to have the balance of the yearly proceeds paid over to himself personally. He was absolute proprietor of the sum so to be paid to him. No right is, under the marriage-contract, given to any other person in this yearly payment. The Lord Ordinary cannot therefore doubt that the right to it was validly assigned to Mr Justice. Mr Ker's whole right of claim for it, whether against his father's trustees or against the trustees in the antenuptial contract, was conveyed to Mr Justice. If the marriage-contract trustees uplifted the sum from the raisers, it would just be for the purpose of paying it over to Mr Justice as Mr Robert Ker's assignee. It appears, therefore, to the Lord Ordinary, that these marriage-contract trustees are not entitled to intervene, to the effect of preventing Mr Justice from drawing the amount directly from the raisers.

It is true that the marriage-contract contains a clause declaring that this yearly payment to Mr Ker, junior, should be strictly alimentary, and not capable of being disposed of by him to his own prejudice. But the Lord Ordinary holds it settled that no one can effectually make such a declaration as to his own property. No one can tie up his own hands by conveying his estate to trustees, and declaring that the rents drawn by them, and paid over to him, shall be alimentary, and protected against his own deeds. As already said, Mr Ker is the only person legally interested in this yearly payment under the marriage-contract. His wife's jointure, falling to her on his decease, is likewise declared alimentary as to her. But no right is given to her to the yearly payment to be made to Mr Ker during his lifetime, which is kept separate as his own property. The Lord Ordinary therefore cannot consider it protected against Mr Justice's deed. The parties might have otherwise proceeded; but the Lord Ordinary cannot do for them what they have not done for themselves.

It was strongly pleaded for the marriage-contract trustees that, at the date of the marriage-contract, it was conceived that Mr Robert Ker, junior, was entitled to the fee of his father's estate, which was conveyed to the trustees as a security for the provisions to the intended wife and children; and that this security having failed, the trustees are entitled to retain the rents and profits accruing to Robert Ker under his liferent, as a substitute security. In other words, what they contend is, that, in place of paying these rents and profits over to Mr Robert Ker, or Mr Justice as his assignee, they are entitled to accumulate them in their own hands, in order to answer the provisions due at Mr Robert Ker's death to his wife and children.

The Lord Ordinary could not accede to this view. It certainly appears true that, at the date of the marriage-contract it was conceived that Mr Robert Ker would have the fee of his father's trust-estate vested in him; and it was not anticipated, that his right would be reduced to a liferent by the act of the trustees, performed under the authority of his father's trust-disposition. But the marriage-contract does not make a specific conveyance of the fee more than the liferent, or the reverse. It simply conveys whatever right Mr Robert Ker might actually possess. It conveys ‘All and Whole my entire right and interest, present and future, under the said trust-disposition and deed of settlement, and codicils thereto,

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of my said deceased father; and in particular, without prejudice to the said generality, all my right and interest in the said estate of Argrennan, &c., with the interests, rents, and proceeds thereof which may become due to me under the said deed of settlement, or out of the said estates, and to all other estates and effects which belonged to my said father, which I am or may become entitled to in any manner of way.’ So standing the conveyance, the trust is expressly for Mr Robert Ker's own behoof, so far as the rents and proceeds during his own life are concerned. The Lord Ordinary can find no sufficient ground on which to hold that the trustees are entitled to convert what is a trust for Mr Robert Ker's individual behoof into a trust in security of Mrs Ker's jointure. The terms of the trust-deed form the law of the case; it is in vain to appeal to any authority beyond. The only security for Mrs Ker's jointure lay in the fee of the estate, as subsisting after Mr Robert Ker's death. If this security has failed in consequence of the trustees depriving Mr Robert Ker of the fee, and restricting his right to a liferent, the failure is perhaps to be regretted; but it cannot be remedied by rearing up a trust not contained in the deed itself. The Lord Ordinary can only effectuate the deed as it stands. He cannot make a new deed for the parties.

W. P.”

Major Weller, the marriage-contract trustee, reclaimed.

D. F. Moncreiff and Gifford, for him, argued: (1) The marriage-contract trustees, according to the terms of the contract, were entitled to uplift the rents in preference to any assignee of Mr Robert Ker. The contract gave them a claim upon these rents for expenses of trust-management, which claim was preferable even to the rights of Mr Robert Ker himself. (2) It was expressly declared by the contract that the rents were to be strictly alimentary, and not to be liable for Mr Robert Ker's debts, and the trustees had a right, as representing the interests of his wife, to uplift the fund, and to prevent it being carried off by his creditors. (3) Their rights under the marriage-contract to the fee of the estate having been swept away by the minute by which Mr Robert Ker's interest was limited to a liferent, they were entitled to receive the rents, and out of them to accumulate a fund out of which the provision to the widow of Mr Robert Ker might be paid in the event of his death.

Pattison and Macdonald, for Mr Justice, replied:—(1) The right of the marriage-contract trustees to uplift the rents was controlled by the obligation to pay them, when so uplifted, to Mr Robert Ker himself, and if they were to be paid to Mr Ker or his assignee, the trustees could show no interest to claim them in this process for that purpose, seeing that the judgment of the Court preferring the assignee to them would be a sufficient exoneration of the trustees in reference thereto. (2) The trustees had not condescended on any expenses as forming a subsisting claim against the rents in the hang of the raisers, but their right to payment of any expenses found to be due to them out of the fund was not disputed. (3) Mr Robert Ker could not make an alimentary provision in his own favour, and whether he could or not, the marriage-contract trustees had no title to insist on its being applied to aliment either Mr Robert Ker or his wife; and (4) The contention of a right to accumulate the rents to form a provision for the widow was quite inconsistent with the deed itself, and the alteration of circumstances as regarded the fee of the estate, could never entitle the trustees to retain the rents, or to dispose of them otherwise than the deed itself authorised.

Millar appeared for the raisers, the late Robert Ker's trustees.

The Court adhered to the Lord Ordinary's interlocutor.

At advising,