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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cumstie v. Cumstie's Trustees [1876] ScotLR 13_594 (30 June 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0594.html
Cite as: [1876] SLR 13_594, [1876] ScotLR 13_594
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Facts:
Certain heritable property was disponed “to A, B, and C (three brothers), equally betwixt them in liferent, for their liferent use allenarly, and the respective heirs whomsoever of the said A, B, and C, equally betwixt them in fee, heritably and irredeemably:”— Held, in a question between C, claiming as the immediate younger brother of B, and B's trustees, that B's right was a mere liferent, without any power of disposal— diss. Lord Deas, on the ground that the words “liferent use allenarly” were inserted to protect the fee for issue of B's body, and since they had failed, the destination over to his heirs whomsoever implied a fee in his person.
Observations on the case of Newlands.
On 23d August 1843 the late William Cumstie acquired from a family of the name of Bayne certain heritable subjects in Oban, and took the disposition in favour of himself, his wife, three of his sons and their heirs, in the following terms:—“To and in favour of the said William Cumstie and Mrs Jean Harriot or Cumstie, his spouse, and the longest liver of them two in liferent, for their liferent use allenarly, and after the death of the longest liver to and in favour of James Cumstie, merchant in Oban, Arthur Cumstie, merchant there, and Alexander Cumstie, merchant there, equally betwixt them in liferent, for their liferent use allenarly, and the respective heirs whomsoever of the said James Cumstie, Arthur Cumstie, and Alexander Cumstie, equally betwixt them in fee, heritably and irredeemably.” Infeftment followed thereon in favour of the respective parties in liferent and fee, in the precise terms of the destination. Certain other heritable subjects in Oban, held by the said William Cumstie under a feu-charter granted by the Marquess of Breadalbane in favour of William Cumstie and his heirs and assignees, he disponed in terms of the following destination:—“To and in favour of myself and Mrs Jean Harriot or Cumstie my spouse, and the longest liver of us two, in life-rent for our liferent use allenarly, and after the death of the longest liver to and in favour of James Cumstie, merchant in Oban, Arthur Cumstie, merchant there, and Peter Cumstie, merchant there, my sons, equally betwixt them in liferent for their liferent use allenarly, and the respective heirs whomsoever of the said James Cumstie, Arthur Cumstie, and Peter Cumstie, equally betwixt them in, fee, heritably and irredeemably.” Infeftment followed upon this disposition also in favour of the parties in liferent and fee respectively in the precise terms of the destination. William Cumstie, the purchaser of the two properties, died in November 1852, and Mrs Jean Harriot or Cumstie died a few days after her husband. They were survived by their four sons named in the two destinations. The first subject was thereafter liferented by
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James, Arthur, and Alexander Cumstie, and the second by James, Arthur, and Peter Cumstie. Arthur Cumstie, who was liferented in one-third of each of the subjects, died in September 1874, leaving a widow but no family, and the question in this action related to the fee of the one-third of the two subjects liferented by him. By his trust-disposition and settlement, dated 12th June 1872, and registered in the Books of Council and Session 7th October 1874, the said Arthur Cumstie conveyed to the defenders, “heritably and irredeemably, All and sundry lands and heritages, debts, heritable and moveable, and whole goods, gear, and effects, and in general my whole means and estate, heritable and moveable, real and personal, of whatever nature or denomination, or wheresoever situated, at present belonging or addebted, or which shall belong or be addebted to me at the time of my death, or the succession to which after my death I have or may have power to regulate, together with the writs and evidents of the said heritable estates, and the whole vouchers and instructions of my said moveable estate.” The pursuer Alexander Cumstie, as being the immediate younger brother and heir whomsoever of the deceased Arthur Cumstie, claimed the shares in question, raised this action of declarator, and pleaded,—“The pursuer, as heir of line of the deceased Arthur Cumstie, is entitled to the fee of the subjects in question respect that —(1) Under the destinations contained in the deeds of conveyance libelled the said Arthur Cumstie was merely a fiduciary fiar, his heir of line being the beneficial fiar and disponee. (2) Even if the said Arthur Cumstie was vested with the fee so as to open the same to the diligence of his onerous creditors, he was not entitled gratuitously to defeat the right of succession conferred upon his heirs, and therefore the conveyance of the said subjects by his trust-settlement was inept.”
The trustees pleaded—“The defenders, as trustees of the deceased Arthur Cumstie, are entitled to absolvitor from the conclusions of the summons, in respect that on a sound construction of the dispositions of the subjects mentioned in the summons, the said Arthur Cumstie was fiar of the subjects conveyed by said deeds, or at least had right to nominate, and has by his trust-disposition and settlement nominated the heirs to succeed to said subjects.”
The Lord Ordinary pronounced the following interlocutor and note:—
“ Edinburgh, 18th December 1875.—The Lord Ordinary having considered the cause, repels the defences: Finds and declares in terms of the conclusions of the libel: Finds the defenders, Arthur Cumstie's Trustees, liable to the pursuer in expenses: Allows an account thereof to be lodged, and remits the same to the Auditor to tax and report.
“ Note.—The only defenders who have appeared are the trustees of Arthur Cumstie. They maintained that from legal necessity Arthur Cumstie was absolute fiar of a pro indiviso third of each of the two properties mentioned on record, or that if he was fiduciary fiar there was no restriction in the trust, inasmuch as he held for such persons as he might appoint to be his heirs. The Lord Ordinary cannot adopt either of these views. He thinks that Arthur Cumstie had a bare right of liferent only, and that his trust-settlement was not effectual either as a conveyance of the property or as a nomination of heirs. The Lord Ordinary has therefore given decree of declarator as concluded for.”
The defenders reclaimed, and argued—There is no possibility of holding that Arthur Cumstie was fiduciary fiar. That character can only be held by a parent for children. The destination here to heirs whomsoever is so wide that the principle which ruled the cases of Newlands and Allardice cannot be extended to it. There must of course be a fiar, and in these circumstances Arthur Cumstie must be held to be absolute fiar. In all the cases in which the character of fiduciary fiar has been given to the liferenter there has been some persona prœdilecta following him in the destination for whom he was to hold in trust; there is no such persona here, and there is no more room for supposing William Cumstie to have intended any one in particular to become fiar than for supposing that he intended to allow his son to nominate the fiar. There is no one here to say as against Arthur Cumstie that he is fiar. In an entail when the, succession opens to heirs whatsoever the entail is held to be at an end, for there is no longer a successio prœdilecta, and the principles applicable there are also applicable to such a case as this. To hold that there was a mere liferent here would be to legalise a species of entail without its fencing clauses.
Authorities— Newlands v. Newlands' Creditors, M. 4294, 8 Ross' Leading Cases, Land Rights, 634; Allardice v. Allardice, Ross, 655; Primrose v. Primrose, 16 D. 498, (opinions of Lords Rutherfurd and Deas); Ramsay v. Beveridge (Lord Deas' judgment), 16 D. 764; Tod v. M'Kenzie, 1 Rettie, 1203.
Argued for Alexander Cumstie—The principle is, that you are to give effect to the intention of the granter of the deed, and if those who are nominatim constituted fiars are not in existence, the nominatim liferenter is held to be fiar. Where the flare are, children nascituri, the fee in the parent, necessary to prevent the fee being in pendente, is merely fiduciary, if the intention of the granter has been made apparent by the use of the word “allenarly.” That principle as to children nascituri has been extended to children nati but not yet in a position to take by the cases of Allardice and of Ferguson, 2 Rettie 627. The force of the word “allenarly” in limiting the liferenter's right is not to be overcome. The only reason suggested here for setting aside the plain intention of the granter as to Arthur Cumstie's liferent is that the destination to “heirs whatsoever” is no guide to the granter's wishes as to the ultimate fiar. But that objection will apply to a destination to the heirs of the body, which was the destination in Ferguson's case, for they cannot be ascertained till the death of the liferenter. The law in entail cases is not applicable here, for there the expression “heirs whatsoever” indicates an abandonment of a successio prcedilecta and a desire to return to ordinary rules; here the destination practically is to heirs of the body, whom failing, to heirs of line. The argument on the other side must go this length— “The heirs of the body cannot take except by their father's destination, because they have
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been coupled with others the truth is, however, that the presumption of a fee in the parent weakens with every step that the children are removed from him, for it is only in virtue of his position as parent that he has a fiduciary fee. The case of Newlands authoritatively settled that the word “allenarly” limits the right of the liferenter to a bare liferent, and leaves it out of his power to defeat the destination over. The views of the minority were influenced by the fact that that was a case with creditors; between creditors and gratuitous disponees, as here, there must always be a broad difference, and therefore the reasoning even of the minority is inapplicable to this case. Authorities— Harvey v. Donald, 26th May 1815, F.C.; Mein v. Taylor, 5 Shaw 779 (Lord Core-house's opinion); M'Donald v. M'Lauchlan, Ross' Leading Cases, Land Rights, 630; Dundas v. Dundas, 2 Shaw 145, Ross 671; Wellwood's Trustees v. Wellwood, Ross 673; Mountstewart v. Mackenzie, M. 14,903; Duff on Feudal Conveyancing, sec. 243, p. 320-21.
At advising—
Arthur Cumstie, who in terms of the deeds had a liferent right allenarly in one-third of each of the subjects, died in September 1874, leaving a widow but no family. Alexander Cumstie, the pursuer of this action, was at the date of Arthur's death, and is now, the next younger brother and heir-at-law of the deceased Arthur Cumstie, and he has been served heir of provision to him accordingly.
By trust-disposition and settlement dated in June 1872, Arthur Cumstie conveyed to the defenders, as trustees, his whole heritable and moveable estate. The question now before the Court is raised in a competition between the pursuer, as brother and heir-at-law of Arthur Cumstie, and the defenders, as trust-disponees of Arthur Cumstie. The point of law involved is, Whether the subjects in Oban belonged to Arthur Cumstie in fee, and were thus effectually disposed of by him? or, Whether they belonged to Arthur Cumstie only for liferent, and for liferent use allenarly, and could not be disposed of by him?
There is no doubt that this question is attended with difficulty. Many interesting and important authorities have been quoted to us, and very many decisions are in the books closely touching and instructively illustrating the general point involved, though not the precise point at issue.
William Cumstie, the father of the pursuer and of Arthur Cumstie and the other brothers, was the proprietor in fee of one of these subjects, and the purchaser of the other, taking the title as he thought fit. It has never been disputed that William Cumstie and his wife, apart from his prior ownership, had under these deeds and in terms of this destination a liferent right allenarly. Then the conveyance is on the death of the longest liver of the two spouses, to the three sons equally in liferent, for their liferent use allenarly, and the respective heirs whomsoever of each. There is no clause of survivorship. The heirs whomsoever of each deceasing son take the fee whenever the liferent of their father ceases. The Lord Ordinary has decided the question in favour of the pursuer—the heir whomsoever — the heir-at-law—the immediate younger brother, of Arthur. His Lordship's opinion is that Arthur had a bare right of liferent only, and that his trust-settlement was not effectual either as a conveyance of the property or as a nomination of heirs.
I concur in this opinion. It appears to me clear that unless Arthur Cumstie had the fee—the true fee—the absolute fee—these trust-disponees from him can have no title. That the trust-disposition operated as a nomination of heirs has not been contended by the defenders, and could not be contended with success. The conveyance to trustees, however reasonably granted, was a voluntary alienation. Unless Arthur had such a right of fee as could have been attached by his creditors, he could not, in my opinion, legally and effectually execute a voluntary conveyance of his estate. No man can give away an estate which his creditors could not attach. If he could bestow it effectually he could not withhold it from creditors. I do not think that the creditors of Arthur could have effectually attached the fee of the estate, carrying it away from the heir, who is his brother, and might have been his son.
But then it is contended that, according to the terms of these deeds, and especially bearing in mind that the ultimate destination is to the heirs whomsoever of the respective sons, the right conferred on Arthur, though in words a liferent, must be considered as truly a fee, the true and absolute fee of the estate, entitling him and enabling him to dispose of it at pleasure.
After much anxious consideration of all the authorities touching this question I am satisfied that the defender's argument is not well founded. Where a subject is conveyed to a father
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Where, however, the right of the person to whom the liferent is given is expressly qualified and limited by the words “for liferent use allenarly,” the question is very different. In my opinion the person whose liferent is thus qualified by the words “for liferent use allenarly” is not the fiar—by which I mean is not the substantial and absolute fiar with the power of a fiar to dispose of the subjects. I shall afterwards advert to the recognition of a fiduciary fiar. In the meantime I may observe that a fiduciary fee would not support the defender's plea, because a fiduciary fiar is a trustee, and cannot effectually alienate the subject of the trust.
I think the word “allenarly” was selected because of its simplicity and its power. I read the word as creating a very marked and stringent limitation of the word “liferent,” as meaning “only a liferent,” “a mere liferent,” or, still more accurately, “a liferent and nothing more,” which is, I think, the true meaning of the expression. A feudal exigency arising from the rule that a fee cannot be in pendente had led to the result that in certain cases a conveyance or destination in liferent was construed as conferring a fee on the person called a liferenter. But the addition of the word allenarly excluded such a result, and fixed the character of the liferenter, by declaring it to be only a mere liferent—a liferent and nothing more. Any attempt to found on the feudal maxim that a fee cannot be in pendente, so as to convert a right conferred as a liferent into a right of fee, is met and defeated by the force of the word “allenarly,” because if the right be a liferent and nothing more it cannot be converted into a right of fee without violating the express words and clear meaning of the deed. It is the enixa voluntas of the maker of the deed that the right of liferent conferred with the qualifying word “allenarly” shall be a liferent and nothing more.
The views which I have now ventured to express are, I think, in accordance with a series of decisions subsequent to the case of Frog's Creditors, 25th November, where the successful argument for the creditors was, that “if the disponer had intended to give the parent a bare liferent she would have used the word ‘allenarly.’” This decision in the case of Frog's Creditors was given with regret, and has been regretted frequently since. The case of Newlands v. Newlands' Creditors, of which there are several reports, and one of much interest by Mr Ross, is too well-known to render it necessary for me at present to do more than very briefly advert to it. The case was most deliberately considered, and the effect of the word “allenarly” as qualifying and limiting the right of liferent was, I think, fully recognised. There was a difference of opinion, and, in particular, one very distinguished Judge differed from the judgment, but in so far as regards the meaning and effect of the word “allenarly,” the judgment was clear, and it was affirmed. I am humbly of opinion that the authority of the decision has never since been shaken, and must now be held as conclusive. When the liferent has been by force of the qualifying words restricted so as to limit it to a bare liferent, then the doctrine of a fiduciary fee for the benefit of those to whom the beneficial fee was destined came to be introduced, and in the case of Newlands, and in the case of Allardice and other cases, effect was given to it. In the case of Allardice there was a succession of liferenters allenarly, and the heirs of two sons in succession were declared to be fiars, and yet the law laid down in the case of Newlands was applied. In many subsequent cases the authority of these decisions has been fully recognised. Eminent lawyers have expressed their concurrence and approval. The opinion of Lord Corehouse in Mein v. Taylor, on 8th June 1827, 3 Ross' Leading Cases, 696, is most instructive. His judgment was adhered to by this Court and in this Division, and was affirmed in the House of Lords. This is what Lord Corehouse says—“When a conveyance is made to one in liferent and his children unnamed or unborn in fee, it is settled law that the fee is in the parent, and that the children have only a hope of succession, to prevent the infringement of the feudal maxim, that a fee cannot be in pendente. It is perhaps to be regretted that the point was so settled, because the plain intention of the maker is in consequence often sacrificed to a mere form of expression, and the feudal maxim might have been saved by supposing a fiduciary fee in the parent, as is done when the word liferent is restricted by the word allenarly or only. Upon this point, however, it is too late to go back, but certainly the principle ought not to be extended to cases which have not yet been brought under it. In the present case the subjects are not disponed to the Messrs Taylor in liferent and their children in fee, but, on the contrary, to the Messrs Taylor in fee, because the obligation to infeft is in favour of them and their heirs and assignees. The question therefore is, Whether the fee so given is absolute or qualified?—a question to be determined by the ordinary rules of construction. It appears clearly that it is a qualified or fiduciary fee, because it is granted under certain burdens and conditions. The disponees are required to divide the property into twelve equal shares, four and a-half of which are to be held by James Taylor in liferent, one by Robert in liferent, and four and a-half by William in liferent, and it is declared that at the death of each liferenter his share or shares shall belong to his children. The mode of division is also distinctly pointed out. In the case of James Taylor, who had children in existence, the disponees, or the survivor or survivors, are specially directed to divide the shares of the two daughters who are named equally betwixt them, and to secure them to the ladies in liferent and their children in fee; and particular directions are also given with
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But then it is maintained that the destination of the fee to the heirs whomsoever of Arthur Cumstie prevents the application of the law settled in regard to a liferent limited to a liferent allenarly. It is rightly urged that a destination to heirs whomsoever is just a destination to heirs as law may direct. That is quite true. A succession of heirs whomsoever is not a successio predilecta. It is a successio provisione legis not provisione hominis. The flow of succession along the channel of heirs whomsoever is governed by law and not by the will of the maker of the deed. Thus there is no doubt that an entail is at an end when we come to heirs whatsoever. On this point there is abundance of authority. But it does not appear to me to follow from the admission of this law in regard to succession provisione leges that the heir-at-law, called under such a deed as this, is at the mercy of the party called as liferenter and liferenter only. I fully accept the authority of cases such as Primrose and many others in regard to a substitution in favour of heirs whomsoever. But that is not the question here. We have to deal with a question of liferent on which the meaning of the deed is not doubtful. The alternative is between the recognition on the one hand, of the liferenter, who is restricted to a liferent allenarly as being notwithstanding that restriction a real and absolute fiar, whose creditors could attach the estate and whose voluntary disposition could convey it,— and the recognition, on the other hand, of a fiduciary fee for the benefit of the heir-at-law. If Arthur Cumstie had had a child he would have been an heir whomsoever. The pursuer is his brother and his heir-at-law, and the trust-disponees of the liferenter are the only other competitors.
the only other competitors.
I appreciate the difficulty arising from the words “heirs whomsoever,” for I have not been able to discover any case in which a fiduciary fee for the benefit of an heir-at-law—an heir whomsoever—has received effect. On the other hand,
I am not aware of any case—and certainly none has been quoted to us—where it has been rejected; so the difficulty must be met on principle. In the case of children and grandchildren, and in the case of a succession of liferenters, the theory of a fiduciary fee has been accepted in order to prevent the consequence, the unreasonable consequence, of making a person fiar who is declared to be liferenter “allenarly.” I can see no sufficient reason why it should not be accepted in this case, where the parties competing for the fee are the heir-at-law of the liferenter, to whom as heir whomsoever the fee is destined by the deed, and the trust-disponees of that liferenter, who, in respect of the restriction and limitation of his liferent, could not effectually grant the disposition. Unless Arthur was absolute fiar, the defenders can have no case. I cannot hold that he had an absolute fee.
A conveyance to A and his heirs whomsoever confers on A the fee. A conveyance to A in liferent and his children nascituri in fee, has also been found to confer on A the fee. This result was effected by force of a feudal maxim of Scottish law which forbids the fee to float on poised wing till it finds fitting settlement, and which demands that from the first the fee shall have a local habitation as well as a name.
The enforcement of this maxim by converting the liferent into a fee was not according to the intention of the maker of the deed. It was the triumph of a legal subtlety over the intention of the maker of the deed, and this was judicially felt and acknowledged in several of the earlier cases. But when by the use of the word “allenarly” liferent was restricted and limited as I have already explained, the converting of that limited liferent into a fee would be clearly and strikingly opposed to intention. Some remedy was required to sustain intention, to disarm subtlety, and to vindicate the essential equity of law. This remedy was found. A new subtlety was evoked to redress the balance disturbed by the regretted enforcement of the former subtlety. A fiduciary fee in the person of the liferenter was recognised in order to sustain the intention—as I think the clear intention—of the deed. A liferenter declared expressly to be a liferenter allenarly can never be held to be an absolute fiar. He is held to be a trustee, with only so much of the character of a fiar as is required to sustain the trust. He cannot alienate the estate, nor can the fee be attached by his creditors.
Accordingly, there has been no judgment and no authority presented to us for refusing effect to the word “allenarly.”
I am not aware of any decision—I really do not think there has been any decision—in which a person to whom a subject was disponed in liferent for liferent use allenarly, was notwitstanding that limitation found to be fiar—by which I mean absolute fiar, having the power to alienate the subject. The case of Falconer v. Wright is not a precedent or authority on this point. No doubt his liferent was limited by the word “allenarly,” but then he was himself the disponer of the lands, and the infeftment on the conveyance to himself
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The more recent cases of Tod v. Mackenzie and of Ferguson do not seem to me to be applicable to the precise point before us. I may be permitted to say that I have no doubt of the soundness of both decisions. But the circumstances here are different, the deeds are different, and the question is different. Either we must here decide that a right, limited and restricted to a liferent and nothing more by the force of an unambiguous expression, adopted and used for the purpose of restriction and limitation, and now held to be a vox signata, is nevertheless and in spite of that restriction not a right of liferent but a right of substantial and absolute fee; or we must extend one step further the principle of fiduciary fee by applying it to the case of an heir-at-law to whom the fee is disponed by the clear words of the deed.
Between these two alternatives I cannot say that I have not had some little hesitation, for the question is certainly difficult, and I am aware that views differing from mine are held in a quarter which I highly respect, but I have not been sparing of time or labour in studying the question and the authorities, and the result is, that according to the best of my judgment I concur with the Lord Ordinary.
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The disposition contained a declaration “that it shall be in the power of the said William Cumstie and Mrs Jean Harriot or Cumstie, and the longest liver of them, at any time of their lives or of the survivor's life, or even on deathbed, to sell, alienate, and dispone the several subjects and others above described, contract debts thereupon, or even gratuitously to dispose thereof in the same manner, and as freely in all respects, as if the said several subjects and others had been disponed by these presents absolutely and irredeem ably in fee to the said William Cumstie and Mrs Jean Harriot or Cumstie and the survivor of them.”
James, Arthur, and Alexander Cumstie were three of the four sons of William Cumstie and his wife, although they are not so described in the deed. Infeftment followed on the deed in terms of the above-quoted dispositive clause in September, and was recorded in October, 1843.
On 25th January 1850 William Cumstie, on the narrative of “certain good and onerous causes and considerations,” executed a disposition of certain other subjects belonging to him in Argyle Street and Tweeddale Street of Oban, the dispositive clause of which was in these terms:—“I hereby give, grant, alienate, and dispone from me, my heirs and successors, to and in favour of myself and Mrs Jean Harriot or Cumstie, my spouse, and the longest liver of us two, in liferent for our liferent use allenarly, and after the death of the longest liver to and in favour of James Cumstie, merchant in Oban, Arthur Cumstie, merchant there, and Peter Cumstie, merchant there, my sons, equally betwixt them, in liferent for their liferent use allenarly, and the respective heirs whomsoever of the said James Cumstie, Arthur Cumstie, and Peter Cumstie, equally betwixt them in fee, heritably and irredeemably, all and whole,” &c.
In this deed the name of the disponer's son Peter is introduced instead of the name of his son Alexander in the other deed. The term of entry is declared to be Martinmas 1849. In all other respects the clauses of the two deeds seem to be identical, except that this deed does not contain the clause of reservation above quoted in favour of the spouses and the survivor of them. Infeftment followed on this deed, and was recorded in January 1850.
Upon the death of the spouses in November 1852, the sons entered respectively into possession of the subjects. Arthur died in September 1874, leaving a widow but no children. He left a trust-disposition and settlement, dated in June 1872
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Arthur Cumstie's children were, of course, comprehended under the general description of his heirs whomsoever, and if he had left a child or children I do not doubt that it must have been held that a fiduciary fee had vested in him for behoof of such child or children. This, although not expressed, is plainly implied in the deed, and the destination is therefore, I think, to be read as if this had been expressed. It is only just and reasonable so to read the destination in a family deed, intended to regulate the succession of the granter amongst his descendants, which is the nature of both deeds here, although they are in an inter vivos form—the four sons having been, so far as it appears, the whole family of the spouses. I therefore read the destination in each of the deeds as running thus, viz., to and in favour of the granter and his wife and longest liver of them in liferent for their liferent use allenarly, and, after the death of the longest liver of them to and in favour of their three sons named in each deed respectively, equally betwixt them, in liferent for their liferent use allenarly, and the child or children born or to be born of the respective bodies of these sons, whom failing, the respective heirs whomsoever of these sons in fee.
In other words, so far as Arthur Cumstie's share is concerned it is to be held destined after the death of his father and mother, to him in liferent for his liferent use allenarly and the child or children born or to be born of his body, whom failing to his heirs whomsoever in fee.
Under such a destination I am of opinion that each of the sons, failing issue of his body, (and consequently Arthur as one of these sons) became fiar of his equal share of the subjects so conveyed, and might dispose of that share at his pleasure, either by inter vivos or mortis causa deed, subject always to the condition (which the law would imply if not expressed in the deed) that the deed was to take effect only failing issue of his own body.
The issue of Arthur Cumstie, the son, would necessarily have been at sometime the issue of the granter himself, and the deed cannot therefore reasonably be read without implying a fiduciary fee in Arthur, the son, for behoof of such issue, whatever may be said of the effect of the destination beyond. Suppose it had been argued in opposition to the claim of such issue that the issue could be in no better position than the heir whomsoever would have been, the answer would, I think, have been conclusive that the issue were entitled to the benefit of the presumption arising from nearness of blood, not only to their immediate parent but to their grandfather, the granter of the deed, by direct descent both from the one and the other, whereas the heir whomsoever might be a collateral, however distant, or possibly the Crown as ultimus hœres. The mere fact that the granter of the deed has comprehended both classes of heirs under one general description of heirs whomsoever could not have excluded the heirs of the body from the benefit of the protection of the fiduciary fee, however clearly it had been made out that no such protection had been extended to collateral or remoter heirs.
But while I thus concede readily that issue of Arthur's body would have been in the same protected position in which all the cases, from the case of Newlands downwards, have placed issue of the body under a destination to a parent in liferent for his liferent use allenarly, and his child or children, born or to be born, in fee, I desiderate either principle or authority for extending or applying that protection and restriction, so as to tie up the parent in a question with his own heir whomsoever.
The case is very different from what it might have been if the destination (or what in this case may fairly be called the destination over) had been in favour of the heir-male in general, or of any particular class of heirs or persons short of heirs whomsoever, whether described as a class or as individuals. Hitherto, all the cases in which the words “liferent allenarly” have been held to create a fiduciary fee, when otherwise the fee would have been absolute, have been cases of parents and children, and I do not choose to speculate unnecessarily as to how far the same principle might be held to sanction or create a fiduciary fee for the benefit of a specified class of heirs or persons, or for the benefit of one of such specified class of heirs or persons, although not an heir or heirs of the body. For the purposes of this case I shall assume, in the fullest manner, that in all such cases there would be a fiduciary fee for behoof of the person or persons, or heir or heirs, for whom the granter had thus shewn his predilection; still, I remain of opinion that there can be no fiduciary fee beyond such persona prœdilecta for behoof of the heir whomsoever.
It would be quite a fallacious mode of reasoning to say that you first find it fixed by the words “liferent allenarly” that the nominatim disponee is a liferenter merely, and then you go on to inquire who else is the fiar. That would be against all feudal principle and against the rule followed in all the decisions in this class of cases. It is true that a conveyance in liferent allenarly, if no other words had followed, would have given Arthur Cumstie nothing but a bare liferent; but that would have been because the fee would have remained in hœreditate jacenti of his father, the granter of the deeds. The case becomes very different where the granter, as here, has parted out and out with the fee after the death of himself and his wife, and has added to the liferent a conveyance of the fee to the heirs whomsoever of Arthur Cumstie, the so called liferenter. You must consider both questions— the liferent and the fee—before you can determine either of them. If there be any difference in the order in which the two things ought to be considered, the law would rather give the
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Here the intermediate destination to Arthur Cumstie's issue, which was conditional upon their coming into existence, has failed entirely by his having no issue. The word “allenarly” was necessary to protect and preserve the fee for the issue if they had come into existence. If that word had not been used Arthur Cumstie would have been absolute fiar in a question with his own children. The word may, therefore, fairly be held to have served its purpose, without supposing that it was meant for a purpose never before attempted in any recorded instance, unless indeed in entails, and then attempted unsuccessfully. If this view were not of itself satisfactory or sufficient, the observation would remain, that as the last words used (viz., the destination to his heirs whomsoever) naturally imply a fee in the person of Arthur Cumstie, these must overrule and negative the effect of the prior words, which, if taken by themselves, might have limited his right to a liferent merely.
As Lord Brougham observed in the case of Gordons v. M'Intosh, H.L., April 17, 1845, 4 Bell's Ap. 121, 122, the word “allenarly” may be defeated in its operation by other words in the deed.
Of this we have an instance in the case of Reid or Wilson v. Reid, &c., Dec. 4, 1827, 6 S. and D. n.e. 198, and F.C. The conveyance by Margaret Reid was to herself and her husband “in conjunct fee and liferent, for our liferent use allenarly, and to the heirs to be procreated betwixt us, the said spouses, whom failing” one. half to her own heirs and one-half to her husband's heirs; and this conveyance bore to be in consideration of a conveyance by the husband's father of a different subject containing a precisely similar destination. After the marriage had subsisted [for twenty-seven years, and the prospect of issue was considered hopeless, and the husband, although still alive, was in bankrupt circumstances, the wife brought an action against the heirs-presumptive both of herself and her husband, concluding, inter alia, to have it found and declared that “the pursuer has the only good and undoubted title, not only to the liferent but also to the fee of the subjects belonging to her and conveyed as aforesaid.”
The Lord Ordinary (Newton) found “that, on the principle of the case of Newlands, and the later cases founded on by the defenders, the right of the pursuer was, by her disposition of 14th May 1807, reduced to a liferent; at least, that if the fee remained in her person or that of her husband, it was a fiduciary fee for behoof of the children of the marriage, and failing them of the pursuer's heirs quoad the one-half, and of her husband's heirs quoad the other,” and therefore assoilzied from the declaratory conclusions of the libel. But Mr Shaw's report bears—“The pursuer having reclaimed, the Court called on the counsel for the defenders to support the interlocutor, and, without hearing the counsel for the pursuer, unanimously altered”—the Lord President (Hope) observing, “It is quite impossible that the interlocutor can stand.” The judgment, as the Faculty report shows, decerned and declared in terms, inter alia, of the declaratory conclusion of the libel.
It is true that in that case it was an important fact that the subject had originally flowed from the wife, and that accounts for the fee being found in her and not in the husband. But it will be distinctly understood that I am not citing the case as a precedent in the present case (for direct precedent I know of none, either the one way or the other), but as an illustration of the principle that the use of the words “liferent allenarly” is not conclusive of the right being a bare liferent, but that we must look beyond, and in the present case must consider carefully the effect of the destination which follows in favour of Arthur Cumstie's heirs whomsoever, before we can affirm that he is is a liferenter merely. It is not immaterial, however, as bearing upon the present case, to observe the ground on which Lord Balgray (no inconsiderable feudalist) placed his judgment in Reid's case, as reported in the Faculty Collection. After observing that the deed was both inter vivos and mortis causa, and therefore that it was important to attend to the previous rights of the parties—that is, of the husband and wife respectively—his Lordship said—“So far as regards the heirs of the marriage, the deed was onerous; but whenever the parties came to consider their heirs whatsoever, it was a deed merely mortis causa, to which their heirs could not make up titles without serving heirs; and therefore (his Lordship thought) that the fee of the subjects still remained with the pursuer.”
It is not, however, upon any supposed repugnance between the restrictive words “liferent allenarly” and the destination which follows in favour of Arthur Cumstie's heirs whomsoever, that I rest my opinion in the present case. On the contrary, I think the two expressions are in this deed quite consistent, being applicable to two different contingencies,—the one, that of Arthur Cumstie having a child or children,—and the other, of his having none. The first of the two deeds was unskilfully framed in not expressing this more fully, and the conveyancer in the second deed obviously followed the model of the first. But the meaning shines out clearly enough. It is easy to understand that the granter should intend the fee to go to his own grandchildren subject to their father's liferent, so that they, as well as their father, might be reasonably provided for; but it is not easy to understand that the granter should intend to prefer his son's heir whomsoever, however remote, to his son himself, to exclude his son's widow, if he left a widow (as he happens to have done) from the benefit of her terce or of any provision her husband might wish to make for her failing their having issue, and likewise to exclude the son, if he resolved to live and die a bachelor or a widower, from all power to dispose of the estate conditional on his having no issue, in order to preserve it for some unknown heir whomsoever, who was not himself to be under any limitation, and might possibly be the Crown as ultimus hœres. I think that would be an irrational construction of the deed, or at least a construction in support of which we are not justified in applying, for the first time in the history of our law, the fiction of a fiduciary fee.
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The use of the words “liferent allenarly” in the deed is quite sufficiently accounted for without putting upon the deed any such improbable construction. Arthur Cumstie might have had issue. Without the word allenarly his liferent would have been a fee, absolute and unlimited, in a question with his own issue. It was, therefore, necessary that the word should be used, but the purpose of using it is fully satisfied without supposing that, besides the protection of the issue, it was meant to serve a purpose to which it had never hitherto been applicable, and which, if really entertained, should have been made the subject of an ordinary trust-deed, in which the granter could have expressed his purpose in plain and intelligible language, and without the risk of being misunderstood.
The cabalistic word allenarly is no such favourite in the law of conveyancing as to entitle it to receive effect in a case like the present, contrary to all the presumptions of intention on the part of the granter arising from the law of nature as between parent and child. Prior to the case of Newlands it had been immemorially the established law of Scotland that a conveyance to an individual in liferent and his issue, born or to be born, in fee, where nothing more appeared, gave the fee to the parent. This is the undoubted law of Scotland still. It might have been better that this had never been so, but the general law could not be gone back upon at the date of the case of Newlands without unsettling the titles to many valuable estates, and what the Court did in that case was to sanction an exception to the general law, of the occasional hardship of which the case before them, where the estate was being carried off by the father's creditors, presented a strong instance, although, as a general rule, the hardship is really not so great as it seems, for all that has to be done is, in place of resorting to the fiction, to execute a trust-deed for behoof of the dispones in liferent and his issue born or to be born in fee, which effectually secures the fee to the children, although neither the word allenarly nor any corresponding word or expression occurs in the deed, as is well known to every conveyancer, and was long ago decided in the case of Seton v. Seton's Creditors, March 6, 1793, M. 4219. If the granter prefers it, I know nothing to prevent the father himself from being named as the trustee, and infeft under an appropriate precept of sasine in that express character.
It was with great hesitation and difficulty that the judgment in the case of Newlands was affirmed in the House of Lords. But the hesitation arose, not from any idea that the general law could or ought to be gone back upon, but from the more than doubtful expediency of sanctioning an exception to that law so long settled and so well understood that the rule had come to express the intention. The Lord Chancellor Loughborough (afterwards Lord Rosslyn) observed— “These propositions have been agreed on in the argument which has been maintained. If a conveyance is granted to a person in liferent and thereafter to the heirs of his body in fee, then such person must of necessity be fiar. It is also an agreed principle, recognised in the law of Scotland, that a fee cannot be in pendente;” but if the word allenarly was added to liferent it was then contended that the fee was to be somewhere, —his Lordship said he could not tell where. “This distinction,” he proceeded to say, “which the counsel admitted could not be maintained in reasoning or in principle, does not add one distinct idea to the limitation,” but as he had been assured that the exception had been very generally understood and acted on, and as “the judgment gives effect to the intention of the testator, which in equity ought always to be supported, so far as can be done consistently with the rules of law, and though I feel no conviction, though my mind inclines to doubt exceedingly that the judgment proceeded on safe grounds, yet I have not courage to venture on a reversal” (M. 4294–5).
In like manner Lord Eldon, in the case of Dewar v. M'Kinnon, speaking of the ordinary rule that a conveyance in liferent to a parent and the issue, born or to be born, in fee, gives the fee to the parent, says—“My Lords, in respect to the doctrine itself I should take it to be clearly established (and whether right or wrong it is not of much consequence to inquire when the point is clearly established) that if there is a limitation in a conveyance of an interest in presenti and unconnected with any question of contract to a man and his wife and the children of the marriage, on feudal principles the fee is in the parents— one of the parents is the fiar—which of the parents depends upon the circumstances—and it is impossible, in my view of the case, to read what fell from my Lord Rosslyn in the case of Newlands without seeing that it was his notion that, after that doctrine was once clearly established it would have been infinitely better to have adhered to that doctrine than to deny the application of that doctrine because the word ‘allenarly’ was used.” Lord Eldon added—“I am ready to go this length, namely, to say, that as this House was advised by my Lord Rosslyn that the effect that was originally attributed to the word allenarly ought in his judgment still to be attributed to it, so it ought to have that effect; at the same time I apprehend your Lordships will take great care not to extend the effect of that word farther unless you are convinced that you ought to extend it farther.”
The observation of Lord Brougham in Gordon v. M'Intosh, concurring with an observation of Lord Corehouse, to the effect that the feudal maxim might have been saved by supposing a fiduciary fee in the parent, equally whether the word allenarly was used or not, and expressing regret that it had not been so settled, cannot be regarded as conflicting with the observations of Lord Rosslyn and Lord Elgin in reference to the case of Newlands, but as referring to what might have been done at some period greatly more remote, when alone the general law could have been settled differently from what it had immemorially been. At the date of the judgment in the case of Newlands, while there was said to have been practice in support of the exception, it had become just as impracticable to go back upon the general law as it would be in the present day.
But it was one thing to sanction, as was done in the case of Newlands, an exception to the general law, in order to give effect to the predilection which the granter of the deed had intensified by the use of the word “allenarly” in favour of his son's issue, who were his own descendants, and quite another thing to sanction such an exception in a case like the present, where by the law of nature all the predilection is in favour of
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It has been suggested by my brother Lord Mure that the case of Allardice, 5th March 1795 (fully reported in Bell's Folio Cases, p. 156, and noticed briefly, and therefore imperfectly, by Mr Ross, vol. iii, 655) is more favourable for the heir whatsoever than the case of Newlands. I have been familiar with both these cases for more than half a century. I have renewed my study of them on the present occasion, and I own I am utterly unable to discover in the difference of details in the case of Allardice any difference in principle which can make it an authority in this case for the heir whatsoever any more than the case of Newlands and the other cases of that class, all of which leave the present case untouched either one way or the other, except in so far as they stand in contrast to it.
The granter of the deed in the case of Allardice was understood to have been displeased with the then subsisting marriage of his eldest son Robert, of which there was a daughter, Jean, alive at the date of the deed. Consequently, he destined his estate of Memus to Robert in liferent allenarly, and to the heirs of Robert's body by any future marriage he might enter into, which failing, to the grantor's second son David in liferent allenarly and the heirs of his body in fee, which failing, to the granter's own nearest heirs or assignees whatsoever in fee.
Robert survived the granter, and accepted of the deed by taking infeftment upon it and exercising a power conferred upon him to burden the estate with £200, and, indeed, as was observed on the bench, he had no power to have repudiated the deed. Afterwards, however, he obtained a precept of clare constat, and took infeftment thereon as his father's heir-at-law. Acting on this fee-simple title he executed a disposition altering the destination in his father's deed so far as to substitute his own daughter Jean, nominatim, immediately after the heirs of any marriage he might subsequently enter into, and before his brother David, the nominatim substitute in the fiduciary fee, and the heirs of David's body.
David Allardice and his son, for whom he was the substituted fiduciary fiar, brought a reduction of Robert's deed, coupled with a declarator; and what the Court decided was that this deed was ultra vires of Robert, and could not affect the succession—a judgment in which I should have entirely concurred.
There was some alarm expressed among the Judges—particularly by Lord President Campbell—as to whether they had not, by their decision in Newlands’ case, introduced a principle which would sanction a new kind of entail by a succession of liferents allenary. It is unnecessary here to go into that speculation; but I may observe, in passing, that I think the President pretty well solved his own difficulty when he said—“Had Robert, the son, been succeeded by heirs of his own body of a subsequent marriage, I have some notion that the substitutions would have been at an end.” He afterwards referred to Brown v. Coventry, Bell's 8vo Cases, p. 310, where this principle was applied in the case of a legacy, and said—“It is in some respects different, to be sure, but I should retain my opinion even in the case of a land estate.”
The only doubt in the case of Allardice was that suggested by Lord Eskgrove, whether the fiduciary fee could be held by Robert not only for his own future issue, if he should marry and have any, but for his brother and his brother's children. This was not very accurately expressed by his Lordship, for it did not require a fiduciary fee in Robert to sanction the substitution or succession of David as a nominatim liferenter, whether allenarly or not; and none of the other Judges took any notice of this supposed difficulty. They thought it enough that the question was amongst heirs, and that the obvious intention of the granter of the deed, that David should be both liferenter and fiduciary fiar failing the existence of any objects for whom Robert could be fiduciary fiar, must therefore receive effect. Thus Lord Justice-Clerk Macqueen said—“I own I did not see a question in this case; the only difference betwixt it and Newlands is that there is here a succession of liferenters; but there is nothing in that.” He then distinguishes the position of Robert, the son, from that of a stranger, and says—“There is nothing more clear than that an heir is bound by the settlements of his predecessor.” That appears to me to be perfectly sound doctrine, and, indeed, I have no occasion for the purposes of the present case to impugn anything whatever affirmed in the case of Allardice.
My brother Lord Mure has farther said, and made it, I think, the keystone of his opinion, that in the cases of Newlands and of Allardice the Judges must have seen that there was a destination to heirs whomsoever failing heirs of the body, and yet this fact did not influence the opinions which they formed, that the fee was fiduciary only. Now, in the first place, his Lordship has overlooked the fact that in both of these cases the destination, failing heirs of the body, was not to the heirs whomsoever of the fiduciary fiar, but to the heirs whomsoever of the granter of the deed. And, in the next place, he has overlooked the fact that in both of these cases, and indeed in all the cases of this class which have been decided, issue of the body existed, so that there was no room for raising any question as to what would have been the result if such issue had totally failed, and the question had been either with the disponees of the fiduciary fiar or with his heirs whomsoever, or with the heirs whomsoever of the granter of the deed.
I do not, of course, mean to represent either the case of Newlands or the case of Allardice, or any of the other cases of that class, as authorities for my opinion in this case. But I may confidently affirm that none of them are authorities to the contrary. All of the cases related to the rights of the issue for whom the fiduciary fee was held, and none of them either raised or could have raised such a question as occurs in this case, where there is no issue, either in esse or in posse, to compete with the disponees of the deceased fiduciary fiar, and the party claiming is in the eye of law eadem persona cum defuncto, to or through whom he must make up a title inferring that he represents him universally in his debts and deeds. The proposal to apply the exceptional doctrine of fiduciary fee to the case of that party by the use of the word “allenarly,” brings up, in the most forcible of all ways, the caution given by Lord Eldon—“I
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I cannot but think it a startling extension of the effect of the word allenarly to attempt by means of it to bring within the category of personœ praedilectœ the heirs whomsoever of the granter's son, in competition with the son himself. Even in a deed of strict entail, heirs whatsoever are never regarded as personœ prœdilectœ; and it would be strange if they were to be so regarded in such a case as this of fiduciary fee. In Macintosh v. Gordon ( 4 Bell's App. 120, and 3 Ross 624) Lord Campbell said that “if the word allenarly is added, this is tantamount to fencing clauses in a deed of entail, and prevents alienation, though still the parent would be fiar.” But his Lordship did not suggest that the word allenarly was stronger than the fencing clauses of a strict entail. The case of Macgregor v. Oordon, 1st December 1864, 3 D. 148, settles the question which the case of Macalpine Leny had barely left open, that although heirs-portioners be expressly excluded by the deed of entail, the destination in favour of A B and his heirs whomsoever makes A B at once fee-simple proprietor. In that case it was the clear intention of the granter to fetter A B as in a question with A B's heir whomsoever, whereas in the present case there is not even probability in favour of such an intention. We could hardly have a stronger proof than this case of Macgregor v. Gordon, that heirs whomsover are not within the category of personœ prcedilectœ by our law and practice, and it is for that alone that I here refer to it.
I may observe, in passing, that the late case of Todd v. Mackenzie, although too peculiar a case to allow of the judgment being directly applicable to any other, contains some suggestive matter, very proper to be considered in connection with this case. For instance, I agree with the observation of your Lordship in the chair in that case, that “a man's heir has no existence until he dies, and it never can be ascertained until he dies who is to be his heir.” I farther agree with your Lordship, as I observe I stated at the time, that there was in that case no destination, in the event of Mr Todd surviving his daughter, to the person who should then be nearest in blood to Mr Todd. That might possibly have been regarded as a destination to a persona prcedilecta, as distinguished from a destination to heirs whomsoever, a distinction to which we gave effect in the late case of Ferguson v. Ferguson's Trustees, 19th March 1875, 2 Rettie 627.
The case of Jameson, 2d March 1775, M. 4284, referred to in the case of Reid, which I have cited above, if it cannot be called a precedent in the present case, is at least highly instructive with reference to the question whether the fee given to the heirs whomsoever of Arthur Cumstie was or was not, in the event which has happened, given to himself. By the contract of marriage between Bachel Wilson and her first husband David Russel, her father assigned to her husband the sum of 5000 merks, which was accepted in full of all her legal claims. It was, however, conditioned in the contract that “in case there be no child alive at the time of the said Rachel Wilson her death, then there shall 1000 merks of her tocher return to her nearest heirs and executors.” The marriage was dissolved by the death of David Russel without issue. Rachel Wilson, by a postnuptial contract with her second husband Andrew Jameson, assigned to him the 1000 merks, and after her death Jameson conveyed this sum and his other estate to a trustee for his creditors. In a multiplepoinding the above sum of 1000 merks was claimed, on the one hand, by the executors and nearest in kin of Rachael Wilson, and, on the other hand, by her second husband, Jameson, as her assignee, and the trustee to whom he had conveyed his estates for behoof of his creditors. The report bears—“The Lord Ordinary gave a judgment preferring Jameson, the husband, to the wife's next-of-kin, who reclaimed,” and pleaded, that after Rachael Wilson's marriage to David Russel the fee of the whole tocher was in him, and as to the 1000 merks, part of that tocher, “the right never could be in Rachel, because the condition on which the sum was to return being her death without children, it could not be purified during her life. Upon the death of Russel both the liferent and fee of this sum devolved upon his heir, burdened with the return thereof, at the death of Rachel Wilson, to her nearest heirs and executors, so that at no period whatever had Rachel either the liferent or the fee of this money.”.
To this it was answered—“By the words of the contract itself the fee of the 1000 merks must have been vested in Rachel Wilson upon this ground, that where a sum of money is taken to a person's heirs and executors, such sum will undoubtedly belong to the person himself, and be at his disposal, unless it shall evidently appear that the designation of heirs and executors was intended to demonstrate and point out certain individuals intended to be favoured. The right to the 1000 merks must have been in somebody after the dissolution of the marriage between Rachel Wilson and her husband by his death. It could not be in the husband's heirs, who had not right thereto by the contract. It could not be in the executors of Rachel, because till her death no such persons did exist. It must therefore have immediately vested in her own person, and become assignable at will. It is therefore evident that in the eye of law a right granted to the heirs and executors of any person is virtually granted to the person himself, and of consequence, that the 1000 merks in question were as much provided to return to Rachel Wilson as if she herself had been expressly mentioned in the clause of return.”
It is obvious I think from the report that the Court, in adhering to the Lord Ordinary's interlocutor, adopted this reasoning, which I conceive to be sound in itself, and equally applicable to the present case as it was to the case of Jameson. I need not say that it makes no difference in such questions whether the subject in dispute be heritable or moveable. (Vide observations as to the application of feudal principles equally to money and land, per Lords Brougham and Campbell in Gordon's case, already referred to).
My brother Lord Ardmillan has observed that the creditors of Arthur Cumstie could not have attached the fee of the subjects in Arthur Cumstie's lifetime, and unless they could have done
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I need hardly say that if the destination to the heirs whomsoever of Arthur Cumstie, failing heirs of his body, was virtually a destination to himself failing heirs of his body. There is nothing either subtle or anomalous in holding that he might dispose of the subjects by mortis causa deed, subject to the implied condition that he should die childless. He was in this view subjected conditionally to the heirs of his own body, and, as the event shews that the condition was purified, I am humbly of opinion that his trust-deed and settlement ought to receive effect. I am therefore for altering the interlocutor reclaimed against, and I shall greatly regret, for the sake of our general law of conveyancing, (hitherto clear and consistent in this department) if your Lordships shall affirm a different result.
It is a rule which was settled in deference to a feudal difficulty, but that feudal difficulty, it has been more than once suggested, might have been
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For these reasons, I am of opinion with the majority of the Court and with the Lord Ordinary. I cannot participate in the legal difficulties of my brother Lord Deas, nor see that there is any reason whatever for refusing effect to what appears to me to be the very plainly expressed intention of Mr Cumstie.
We shall therefore adhere to the Lord Ordinary's interlocutor.
Mr Kinnear having stated that there was no decerniture in the interlocutor—
Counsel for Pursuer—Dean of Faculty (Watson)— Kinnear. Agents— D. & W. Shiress, S.S.C.
Counsel for Defender— Thoms— J. A. Reid. Agents— Philip, Laing, & Monro, W.S.