Scottish Court of Session Decisions

Hugh Munro by trust-disposition and settlement conveyed his lands of Barnaline and Altacaberry and others to certain trustees for various purposes, and, inter alia, for payment of an annuity of £10 to his niece Susan Macarthur, and on her death of a legacy of £200 equally among her lawful children, whom failing her own heirs and assignees whomsoever, and he also directed his trustees to provide her “a good and sufficient dwelling-house, not under three couples, with the necessary quantity of peats for fire, and a garden, as also grass and winter provender for one cow, with a reasonable quantity of potato — ground, adequate at least to the manure of the said cow, and that upon the said lands of Barnaline, during all the days of her life.” The said annuity and legacy were to be payable out of the “rents and yearly profits of the lands of Barnaline and Altacaberry,”and were declared real burdens thereon. Thereafter, when the purposes of the trust were fully satisfied, he directed that his trustees should divest themselves of the lands, and reconvey them under the fetters of an entail to the series of heirs mentioned in a deed of entail which he had previously executed in favour of himself and others, and under which he had reserved power to execute such a trust-disposition or other deed as that in question. The rents falling due during the subsistence of the trust were to be paid to the person entitled to succeed under that destination.

After the death of the truster, and the failure of the trustees whom he had nominated, F. Hayne

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Carter, C.A., was appointed judicial factor on the estate, and managed and administered the trust in terms of the truster's directions.

This was a petition presented by the Rev. Hugh Munro, who was entitled to the estate under the tailzied destination, and by the judicial factor, and it set forth that there was now no provision of the trust-deed to be carried out except those already mentioned in favour of Miss Macarthur. She was now seventy years old, and the petitioners asked the Court to grant warrant to the judicial factor to divest himself of the lands, and to reconvey them to Mr Munro and the heirs of entail pointed out in the trust-disposition and deed of entail. But the conveyance was to be subject to the real burden in favour of the judicial factor of the provisions conceived in favour of Susan Macarthur and her children contained in the trust-disposition. The prayer then asked the Court to recal the appointment of the judicial factor so far as regarded the lands in question, “except the real burden of the foresaid provisions therein, and to discharge him of his whole actings and intromissions as judicial factor in regard to the lands, except as aforesaid.”

Miss Susan Macarthur lodged answers to the petition, in which she stated that if the Court thought a conveyance in the terms asked would carry out the truster's instructions and also not prejudice present rights, she, while not consenting thereto, would not press objections.

A draft of the proposed deed of entail was lodged with the reporter to whom the Lord Ordinary ( Adam) had remitted to inquire into the facts of the petition. It was in terms of a minute subsequently lodged for the petitioners, in which it was stated that the proposal was that the factor was to have lodged in his hands a sum of £200 for payment of (1) legacy duty on the £200 legacy, (2) succession duty payable by the heir of entail upon the falling in of the annuity of £10, and (3) expenses of eventually winding-up the factory.

Under the deed these provisions were “to be payable to and prestable by” the judicial factor, “by and against the heir in possession of the said lands and others, and that for behoof of the parties beneficially interested therein out of the rents and yearly profits of the said lands,” and they were constituted real burdens.

A clause was added to the deed at the instance of the Lord Ordinary, securing Miss Macarthur in a dwelling-house in the possible event that the one she had was destroyed by fire or otherwise.

The petitioners submitted that in this way the provisions would be as well secured as under the trust-deed, and as the factor was made responsible for the payment the difficulty felt by the Court in the case of White's Trustees v. Whyte, June 1, 1877, 4 R. 786, did not exist.

The Lord Ordinary ( Adam), after it had been reported that the disposition and deed of entail had been duly recorded, pronounced an interlocutor approving of it, and interponing authority thereto.

Miss Macarthur reclaimed.

At advising—