Scottish Court of Session Decisions

Mrs Carsina Gray was born in the year 1831, and was heiress of entail in possession of the entailed estate of Carse, or Carse Gray, in Forfarshire, under a deed of entail executed in May 1765. She was married first to Lieutenant William Hunter, afterwards William Hunter Gray, by whom she had several children, and by her second marriage, which took place in 1865, she had also several children. In 1875, under the provisions of the Entail Amendment (Scotland) Act of that year, she executed a deed of disentail of the said lands with the consent of her eldest son, the next heir of entail and her apparent heir. The deed of consent was executed upon the 18th August 1875, and next day Mrs Gray expede an instrument of disentail, which was recorded under warrant of the Court in the Register of Entails early in 1876. On the 10th March of that year Mrs Gray executed a trust-disposition and settlement in favour of Graham Binny, W.S., and James Webster, S.S.C., whereby she conveyed to them her whole estate, heritable and moveable. The deed conveyed “All and sundry lands, houses, and tenements, messuages, and other heritable and real estate of every description which shall belong to me at the time of my death, wherever situated, whether in Scotland, England, or Australia, or elsewhere; as also my whole household furniture, plate, stock, chattels, and effects, rents, and other personal estate of whatever kind and denomination, heirship moveables included, which shall belong to me at the time foresaid of my death, and wheresoever the same may be situated, together with the whole titles, writs, and evidents, vouchers and instructions of my estate and effects hereby generally conveyed, and all that has followed or may be competent to follow thereon.” There was, inter alia, this further clause—“And I hereby confer on my trustees full power to sell or dispose of the whole or any part of the trust-estate in such lots and portions as my said trustees shall consider most advantageous, and to grant or execute all deeds necessary for rendering the said sale 0.1 sales effectual; and binding me and my heirs in absolute warrandice thereof in the same manner and as amply and effectually as I could have done myself, with power also to borrow money upon the security of the said trust-estate, and to grant leases thereof for such term of years as they may find necessary or approve of; also to give easements to tenants, to enter into arbitrations, and generally to do everything falling within the duties of trustees in like cases; and I hereby reserve to myself, not only my own liferent of the trust-estate above conveyed, but also full power at any time of my life to alter, innovate, or revoke these presents in whole or in part as I shall think proper.” Among the other purposes of that deed were the providing an annuity of £1000 a-year to her second husband, the payment of £4500 to her children by the second marriage, and the division of the residue among the whole children of the marriage, including the eldest.

Mrs Gray died on 16th May 1876, and the trustees under her trust-disposition thereafter made up a title to the estate of Carse, and became infeft in it. This action was raised at the instance of Charles William Gray, Mrs Gray's eldest son, against the trustees under the trust-disposition above mentioned, and concluded for reduction (1) of the deed of consent to the disentail, and of all that followed thereon, and (2) of the trust-disposition and settlement mentioned above, and relative notarial instrument.

There was also an alternative conclusion for declarator that the lands contained in the deed of entail were not conveyed to the defender by the trust-disposition and settlement, and that they passed to the pursuer on the death of his mother, under the destination in the deed of en. tail.

The latter conclusion alone was the subject of the present argument and decision, and it is unnecessary here to state the averments or pleas by which the former was supported.

It appeared from the defenders' statement of

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facts that under the contract of marriage between the pursuer's father and mother, Mrs Gray had bound herself, and her heirs entitled to succeed to her in the entailed estate, to make payment of a sum of £4500 to all children of the marriage who should be alive at her death. After the disentail she implemented that obligation by granting a bond and disposition in security over Carse in favour of the defenders, as trustees for the purposes therein mentioned.

The defenders further averred—“(Stat. 10) The trust-disposition and settlement of 10th March 1876 was executed by Mrs Gray—with the intention of thereby disponing the estate of Carse Gray for the purposes of the said deed. At the date of its execution, and down to her death, she believed, as was the fact, that the estate of Carse Gray was carried by the said trust-disposition. Neither at the date of the said trust-disposition and settlement, nor at her death, was Mrs Gray possessed of any heritable or real estate, either in Scotland or elsewhere, other than Carse Gray. At the date of the said trust-disposition and settlement Mrs Gray had no means or estate of any description apart from the estate of Carse, except the furniture in the mansion-house of Carse Gray, of the value of £600 or thereby, and Mrs Gray was then in debt to the amount of £35, 000 or thereby, which to a great extent had been secured over her life interest in the estate of Carse Gray, and by policies of assurance on her life, held in security. Unless out of the income from and proceeds of the estate of Carse Gray, there existed no estate whatever belonging to Mrs Gray at the date of said trust-disposition and settlement from which the provision of £4000 in favour of the pursuer, payable at Mrs Gray's death under her letter of 18th August 1876, or any of the provisions made by her trust-disposition and settlement could be implemented. After the date of said trust-disposition and settlement, and immediately previous to her death, Mrs Gray borrowed from the Scottish Provident Institution, under the bond and disposition in security mentioned in statement 9 for the defenders, the sum of £38, 000 on the security of the estate of Carse Gray, and with that sum paid off her debts, and thereupon procured retrocessions of the several policies of assurance which had been effected in security thereof. It was the intention of Mrs Gray to surrender the whole of said policies before any further premium thereon became payable, but her death occurred suddenly, immediately after she had been retrocessed in the several policies, and before arrangements had been carried through for their surrender. The whole estate belonging to Mrs Gray at the time of her death, apart from the estate of Carse Gray and the said policies of assurance, consisted of the said furniture in Carse Gray mansion-house, the accrued rents from the Carse Gray estate, and a balance of £3000 or thereby of said loan of £38, 000, which had been set apart for the purpose of redeeming an annuity affecting Mrs Gray's liferent of the estate of Carse.”

The pursuer pleaded, inter alia—“(4) Assuming the said deed of consent to have been effectual, the destination contained in the deed of entail continued operative, and the said trust-disposition and settlement being a general disposition, did not validly evacuate the said destination.”

The defenders pleaded—“(5) The estate of Carse was effectually conveyed to the defenders by the trust-disposition and settlement of 1876, in virtue of its intention and terms.”

The facts alleged in the statement quoted above were not admitted by the pursuer, and the defenders were allowed, first by interlocutor of the Lord Ordinary ( Young), and subsequently, on a reclaiming note being presented, by the Division, “a proof of their averments regarding the property belonging to the late Mrs Gray at the date of her disposition of 10th March 1876, and at the time of her death.”

The result of the proof sufficiently appears from the Lord Ordinary's note and the opinions of the Court.

The Lord Ordinary ( Young) pronounced an interlocutor in which, inter alia, he found that the averments of the defenders referred to above were true in fact, and repelled the fourth plea-in-law for the defenders, sustaining the plea for the defenders quoted above, thereby holding that the destination in the deed of entail was evacuated by the terms of the trust-disposition. He added this note.

“ Note.—[After explaining the previous procedure in the case.]—A full debate took place accordingly, upon which, after taking time for consideration, I delivered a written judgment as follows:—

The parties were, I think, rightly agreed that the fourth plea-in-law for the pursuer ought to be first considered and disposed of.

This plea assumes that the course of succession prescribed by the entail of Carse was not, by the instrument of disentail executed by the late heir in possession, Mrs Gray, defeated or otherwise affected than by the removal of the prohibition against alteration. I think the assumption is right, but as the defenders dispute it I shall briefly state the grounds on which I think it is right.

The term “fee-simple” is used in two different senses, the most frequent and familiar being a fee of which the owner has the absolute power of disposal, or perhaps, more correctly, a fee whose owner's power of disposal is not limited and restrained by a statutory entail. In this sense the term is applicable notwithstanding of a simple destination, which, although efficacious while it is allowed to stand, the owner may alter or defeat at pleasure. In the other sense of the term, it signifies a fee which descends to heirs-in-general according to the legal rules of succession. The term “entail” is also used in two different senses, which respectively correspond and are employed in opposition to the two senses of fee-simple. The common and familiar meaning of the term is a strict entail, whereby the course of succession is not only prescribed but protected under the statute, while the other and more strict, though less common meaning, is any prescribed course of succession, although unprotected and subject to be altered or defeated by alienation at the owner's pleasure. An unprotected course of succession is in the familiar daily language of the profession and the Courts called a simple destination, and not an entail, which term is in that language reserved for a protected succession or strict entail, while a fee under simple destination is a “fee-simple” as that term is commonly used and understood.

It is I think clear, that in the Entail Act of 1848 the terms “fee-simple” and “entail, ” or

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“entailed estate, ” are used in what I have represented as the common and familiar meaning of these terms respectively. The provisions of the statute are applicable to strict entails only, and would be found senseless if attempted to be applied to an entail by simple destination. The term “fee-simple, ” again, is plainly in this Act used in opposition to “entail” or “entailed estate” in the sense of the Act—that is, in opposition to a fee strictly entailed, and not to a fee under simple destination, which the term “fee-simple” as commonly used comprehends.

By section 32 of the Act of 1848 it is enacted that an instrument of disentail shall have the effect “not of altering, but of entitling such heir in possession to alter the course of succession prescribed by such tailzie”—language which I think implies that he (the heir) may leave it to stand if so minded, and that if he desire “to alter” it he must do so by some deed appropriate to the purpose, as in the case of any other owner of a simply destined fee, which by the declared effect of the disentail his fee has become. In short, while by the disentail all prohibitions, limitations, and fetters are removed, and the owner is set completely at liberty to deal with the estate, he is left to use his liberty or not as he pleases, and in such manner and to such extent as he pleases, and the course of succession is not altered any more than the estate is alienated or burdened without some appropriate action on his part after acquiring his freedom.

I am therefore of opinion that the estate of Carse was not by the disentail rendered fee-simple in the sense of being descendible to heirs-general; that Mrs Gray possessed it till her death on the deed of entail, the course of succession prescribed by which governed its descent; and that the question whether or not it passed to her testamentary trustees under her trust-disposition and settlement must be judged of with reference to that quality of the estate, viz., that it stood on a special destination to heirs which she left unaltered, unless indeed the trust-settlement itself operated an alteration of succession, which I think it clearly did not. In saying so I only mean that if the general conveyance of the settlement operates on this estate at all, it must do so, not as a deed altering the course of succession, but as an alienation operating directly on the fee, whereby all “succession” to or through the testator is terminated, just as it would have been by a particular or special conveyance to a purchaser, which, however efficacious for its purpose, would not have been an alteration of the order of succession.

Assuming, then, that according to the title on which the testator held it at her death the estate of Carse stood destined to a particular order of heirs, the question is, Does it or not pass to her testamentary trustees under the general conveyance of her trust-settlement? This question I must, on the authority of the case of Thoms, answer in the affirmative. The defenders urged that the authority of this case was shaken by the observations which had been made upon it by the Lord Chancellor and Lord Colonsay in the subsequent case of Glendonwyn. But if I considered that a single Judge of this Court was entitled to disregard the authority of a judgment of the whole Court upon mere doubts expressed in a subsequent case in the Lords (which, speaking generally, I do not), I should think the doubts expressed in this instance did not so affect the authority as to entitle me to disregard it as binding upon me here. Lord Colonsay's doubt only regarded the proposition that a general conveyance should, in the absence of any evidence of intention to the contrary, carry everything, including specially destined property which the disponer had power to convey—the inclination of his opinion being apparently favourable (although he would probably have objected to this as too strong an interpretation of what he said) to this other proposition, that in the absence of any evidence of contrary intention the special destination should prevail over the general disposition. The Lord Chancellor questioned the propriety in principle of the decisions admitting extrinsic evidence of the intention, and stated his preference for a rule whereby either the general conveyance (as in England) or the special destination, as upon a Scotch view (which he thought neither unreasonable nor inconvenient), should prevail to the exclusion of all extrinsic evidence. The judgment in the case proceeded on evidence of intention, and as a judgment is clear authority for the admissibility of such evidence notwithstanding that but for the previous decisions the Lord Chancellor would probably have been against admitting it. In this case all the circumstances dehors the deed—the disentail by which it was preceded, the state of the family, the terms of the family settlement, and the absence of all property besides the disentailed estate for that family settlement to operate on—support the view that it was according to the testator's intention to pass the estate in question to her trustees. Unless indeed there is a rule of law which on this question of intention compels a Judge to disregard what the human understanding if not so restrained would find irresistible, I see no room for doubt that the testator meant Carse to be carried by her general disposition. The judgment in the case of Glendonwyn is therefore in my opinion no obstacle to here proceeding on the authority of the case of Thoms, for in Glendonwyn's case the evidence of intention was—or so the Court and House of Lords thought—clearly the other way, and both here and in the Lords the decision was on evidence of intention. I shall perhaps most accurately represent the grounds of my judgment by saying that it proceeds on the authority of Thoms' case plus this confirmation of the conclusion thereby reached that the whole evidence dehors the deed supports that conclusion as being probably (I might say certainly) in accordance with the testator's intention.'

No interlocutor was pronounced, because of a suggestion of my own that it was proper that the fact (which had been assumed in the argument and in my judgment) that the late Mrs Gray possessed and left no estate except the lands of Carse for her general settlement to operate upon, should appear on the record as one upon which the parties were agreed. In accordance with this suggestion the record was amended. The amendment, in consequence of the position which the pursuer saw fit to take up, led to my interlocutor of 21st June, and to the reclaiming note which resulted in the interlocutor of 20th July.

The result of the proof has been what was to be anticipated, assuming the integrity of the trustees. The proof was merely formal, and the

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pursuer's counsel offered no remarks upon it, but assented so far to the judgment which I have now pronounced. I offer no reflection on the conduct of the pursuer, who was no doubt advised that the argument in support of his fourth plea might conceivably be prejudiced if he admitted a fact which although true was according to that argument irrelevant. This groundless (as I think it) apprehension has delayed the case for six months, and occasioned a considerable amount of unnecessary expense. In saying so I do not overlook the additional statements and relative plea-in-law for the defenders which the Court allowed to be added to the record; for these are (I think manifestly) worthless, and I was not surprised when the defenders' counsel announced that he was unable to state an argument upon them.

The points embraced by the judgment which I formerly delivered (and which is now included in this note) were not re-argued, and I have only to say that on reconsideration I adhere to the opinions on which it proceeds. There is one point—a very material one no doubt—on which I would, in order to avoid any possible misapprehension, desire to add a few words of qualifying explanation. I am not of opinion that a general proof or proof at large of the intention of the maker of a deed is allowable in any case with a view to the construction or legal effect of the deed. There is, I think, an important and well-founded distinction between such a proof and evidence of the nature and extent of a person's property, and the relation in which he stood to it at the time when he made a deed regarding it or (if of a testamentary character) at the time of his death. Such evidence is (or frequently may be) necessary to enable the Court to put itself in the same position with respect to knowledge of material facts as the maker of the deed, so that his language, which that of the deed must be taken to be, shall be interpreted and have effect accordingly. The purpose being to reach his intention always with due circumspection and safety, one is apt to speak popularly of evidence to this end as evidence of intention, although it is in truth only evidence of existing facts of a character to be presumably known to the maker of the deed, and with reference to which therefore it is reasonable to conclude that he meant the language of his deed to be considered and have effect. To the extent of interpreting a description of subjects or identifying those to which general words are applicable, it is, I think, generally agreed that evidence of the character referred to is and must be admissible. I doubt if it is here necessary to exceed that proposition, but if it is, I am for carrying it as far as the reason of it extends, and beyond this I think the judgment that I now pronounce does not go.” … .

The pursuer reclaimed.

Authorities— Thoms v. Thoms, March 30, 1868, 6 Macph. 704; Glendonwyn v. Gordon, July 20, 1870, 8 Macph. 1075—House of Lords, July 20, 1870, 11 Macph. (H. of L.) 33; Catton v. Mackenzie, July 19, 1870, 8 Macph. 1049.

At advising—