Scottish Court of Session Decisions

Sophia Marchioness of Bute died on 28th December 1859 leaving a trust-disposition and settlement dated in 1859, and duly recorded, by which she conveyed to the trustees therein appointed her whole estate, heritable and moveable. The said disposition contained the following purposes:—“Fourthly, I direct and appoint that the jewels, watches, seals, pocket and other personal trinkets and ornaments, bequeathed to me by the late John Marquess of Bute, my husband, shall be held as heirlooms and settled upon my dear and only child John Patrick, now Marquess of Bute, and after him on the heirs entitled to succeed to the Bute estates in the county of Glamorgan; and in the event of my dying before my son attains the age of twenty-one, I recommend and trust that the Court of Chancery will appoint as his guardians the foresaid Colonel Charles Stuart, Sir Francis Hastings Gilbert, Baronet, and Lady Elizabeth Moore, whose near relationship entitles them to the office, and in all of whom I have the most perfect confidence; and if any member of the Bute family shall interfere with or endeavour to prevent such appointment, or refuse to apply for and recommend it, then and in that case, or in the event of my son dying without issue, I direct the said jewels, trinkets, and others to be sold at his death by public auction, and the proceeds applied in the erection of almshouses in memory of my mother and my sister Flora; said almshouses to be erected in or near Edinburgh, their birthplace, and to be called the Flora Almshouses,’ to be used and occupied by the widows and daughters of officers of the British or Indian army in necessitous circumstances, under such conditions or regulations as my trustees may from time to time appoint.” “ Sixthly, I direct and appoint the plate purchased by me from the executors of the deceased Lord Dudley Stuart to be made an heirloom, and settled and secured upon the same series of heirs as are appointed to succeed to the Marquess of Bute's Glamorganshire estates; and in respect a portion thereof is much worn, I authorise any heir in possession to melt down and restore what may at the time be unfit for use.” The residue of the estate was directed to be applied to the purposes of the almshouses before mentioned, “or in such other manner as my said trustees and their foresaids shall consider most for the honour and benefit of my family.”

In 1873 the trustees, acting under the said trust-disposition, handed over the said jewels and plate to Lady Bute's son, the present Marquis, for his use, and took from him a receipt and obligation dated 12th July 1873. In that document the Marquis of Bute. after referring to the said trust-disposition, and acknowledging to have received the said jewels and plate, “but always on the terms and conditions of the said trust-disposition and settlement,” proceeded:—“Therefore I bind and oblige myself, and my heirs, executors, and successors, at any time (if and when called upon) to concur with the trustees and their successors in settling, by a formal deed or deeds, in such form as may be permitted by the rules of law and equity, the said jewels, watches, seals, pocket and other personal trinkets and ornaments, and the said plate above referred to, upon myself, and after me on the heirs entitled to succeed to the Bute estates in the county of Glamorgan, all in the terms of the said trust-disposition and settlement; and in the event of my

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death without issue, I direct my executors or executor, and bind and oblige my heirs, executors, and successors whomsoever, to hand over the said jewels, watches, seals, pocket and other personal trinkets and ornaments, to the said trustees and their successors in office; in terms of the said trust-disposition and settlement; and in the event of my death leaving issue, I direct my executors or executor, and bind and oblige my heirs, executors, and successors whomsoever, to hand over the said jewels, watches, seals, pocket and other personal trinkets and ornaments, and the said plate, to the heir entitled to succeed to the Bute estates in Glamorganshire, as above provided.” The present Marquis attained majority in 1868, and had issue Lady Margaret Crichton Stuart, born in 1875.

This action was brought by him against the trustees acting under Lady Bute's said trust-disposition, and also against the said Lady Margaret Crichton Stuart, Colonel J. F. D. Crichton Stuart, and Patrick J. Crichton Stuart, the three nearest heirs entitled after the pursuer to succeed to the Bute estates in the county of Glamorgan, to have it declared that under the said trust-disposition the pursuer had full right to the absolute property and possession of the jewels, &c., with regard to which Lady Bute gave directions in the fourth head of her said deed; and that the direction therein contained, that in the event of the pursuer dying without issue the trustees should at his death sell the said jewels, &c., had become inoperative, and that after the said jewels, &c., were in possession of the pursuer, the said trustees would not have at any time, and in particular at his death, any duty or right to sell or dispose of the said jewels, &c., and that pursuer had full right to dispose of the same in any way, onerously and gratuitously, inter vivos or by testament, at his pleasure; and further, to have it declared that the pursuer had right to the full and absolute property and possession of the plate dealt with in head sixthly of the said trust-disposition, and to dispose thereof in any way at his pleasure.

The Lord Ordinary ( Curriehill) dismissed the action and decerned. His Lordship added the following note:—“The late Marchioness of Bute, by her trust-disposition and settlement, dated 2d June 1859, conveyed her whole estate, heritable and moveable, to trustees. The present action has been raised by her son, the present Marquess, against these trustees and certain other persons who are the next heirs entitled after the pursuer to succeed to the Bute estates in the county of Glamorgan, in order to ascertain the true meaning and effect of the directions in that settlement regarding certain jewels, trinkets, plate, and the like, which belonged to the Marchioness. These directions are contained in the fourth and sixth portions of the settlement. [ His Lordship here quoted these portions].

“The trustees in pursuance of these directions have delivered all these articles to the pursuer per inventory, and have received from him an acknowledgment binding him to concur with them in settling and securing the articles in terms of the settlement, and directing his executors to redeliver them to the trustees at his death. The pursuer, however, now maintains, that as his mother was a domiciled Scotchwoman, and as her settlement, which is in the Scottish form, was prepared by her agents in Edinburgh, and executed by her in that city, the deed must be construed according to the law of Scotland; that by the law of Scotland an entail of moveables, which is what is truly intended by the directions above recited, cannot receive effect; that he is therefore entitled to retain the whole of the articles as his absolute and exclusive property, and to alienate them at pleasure, onerously or gratuitously; and that he is not bound to redeliver them to the trustees, or to submit to their being settled or secured as directed by the settlement.

It may be conceded, and after the recent decision in the case of Kinnear, 2 Ret. 765, and 4 Ret. 705, it would be difficult to dispute, that by the law of Scotland moveables cannot be effectually entailed; but the defenders, who are the trustees of the late Marchioness, and the four persons next entitled to succeed to the Glamorganshire estates—viz., the pursuer's only child Lady Margaret Stuart, and Colonel J. F. Crichton Stuart, and his two sons—maintain (1), as regards the jewels and trinkets, that the direction, even if the settlement be construed as a Scotch deed, confers upon the pursuer no higher right than a life-interest; and (2) that as regards not only the jewels and trinkets, but also the plate, the settlement must be construed with reference to the law of England, which allows moveables to be made heirlooms and entailed in connection with landed estates.

Now, even assuming that the settlement must be construed as a purely Scotch deed, and with reference to the rules of the law of Scotland which forbid entails of moveables, I should be inclined to hold that, according to the sound construction of the fourth purpose, the direction given to the trustees to hold the jewels, &c., as heirlooms, and settle and secure them on the pursuer and the heirs of the Glamorganshire estates, is qualified by the direction to sell them in the event of the pursuer dying without issue, and to apply the price in the erection of almshouses. This, I think, clearly implies that the pursuer was intended to have merely a life-interest in these articles, and that the heirs of the Glamorganshire estates were to take no interest at all in the event of the pursuer dying without issue.

I am inclined, however, to think that in giving the directions contained in the fourth and sixth purposes of the settlement the truster intended her trustees to deal with the jewels, trinkets, and plate according to the rules of English jurisprudence, and that the settlement must be construed on that footing. It is therefore necessary to ascertain how the Courts of England would deal with this settlement; and at the debate the parties concurred in stating (1) that by the law of England moveables may be competently made ‘heirlooms,’ and may be effectually entailed in connection with land; (2) that the directions in question are expressed in the proper terms to secure that result with reference to the Glamorganshire estates of the Bute family, which are held under a strict entail; and (3) that the interest of the pursuer in these estates, and in the jewels and plate if made heirlooms, is merely a life-interest.

This being so, it appears to me that the trustees have already given to the pursuer all that he is entitled to ask. They have handed to him the articles per inventory, taking from him at the same time an obligation to concur with them in

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settling and securing the heirlooms in terms of the directions, and directing his executors on his death to restore them to the trustees. What is to become of the articles after the pursuer's death is a question on which I do not venture to offer an opinion. In the meantime the pursuer cannot succeed in his present claim, and the action will be dismissed—a course which I think preferable to pronouncing decree of absolvitor in favour of the defender.”

The pursuer reclaimed. During the debate in the Inner House a joint minute of admissions was put in for the parties, in which their counsel concurred in admitting—“(1) That utider the will of the late Lord Bute, the present Lord Bute, the pursuer, is tenant for life of the Bute estates in the county of Glamorgan, with remainder to his first and every other son successively in tail, with remainder to his first and every other daughter successively in tail, with other remainders over. (2) That by the law of England personal property may be devised and limited as an heirloom to a person for life, with remainder to other persons in tail. (3) That by the law of England personal property so devised or limited as an heirloom will be enjoyed by the tenant for life, and will be inalienable by him; and at his death will pass to and become the absolute property of the first person seised in tail, unless by an express declaration in the settlement vesting has been postponed until his attainment of twenty-one, or his death under that age, leaving issue inheritable under the entail.”

Argued for the pursuer—Lady Bute was a domiciled Scotchwoman; and her deed was a Scotch one in point of form and to all effects. The destination in favour of the heirs succeeding to the English estates could not change the domicile of the truster. The deed was therefore to be construed by Scotch law. By that law an entail of moveables was impossible. The pursuer was therefore entitled to retain the jewels and plate in absolute property, and to dispose of them at will. If the jewels were once settled as “heirlooms” in the legal sense, there could be no force in the direction to the trustees to sell them at pursuer's death, for they could have no power over them any more. But the word “heirloom” was not necessarily a word of skill. There was no need to import English conveyancing into the case at all.

The defenders replied—The pursuer's interest in these moveables was clearly a life-interest only. The terms of the deed showed this. This case was quite outside the cases as to entail of moveables in Scotland. The intention here was that the trustees should execute a deed in English form, by which these articles should “run with” the Glamorganshire estates, which could quite well be done by English law. If the directions of the testatrix as to the destination of these moveables was to be held to be impossible, they would fall into residue, and so pass to the trustees for the purposes of the almshouses, and not, in any view, to the pursuer.

Authorities— Mitchell & Baxter v. Davies, Dec. 3, 1875, 3 R. 208; Ferguson v. Marjoribanks, April 1, 1853, 15 D. 637; Corbet and Others v. Waddell and Others, Nov. 13, 1879, 7 R. 200; Thomson's Trustees v. Alexander, Dec. 18, 1851, 14 D. 217; Rainsford v. Maxwell, Feb. 6, 1852, 14 D. 450; Williams on Executors, pp. 726, 731; Kinnear v. Kinnear's Trustees, June 5, 1875, 2 R. 765, and June 20, 1877, 4 R. 705; Shelley v. Shelley, 1868, 6 L.R. (Equity) 540; Gibson's Trustees v. Ross, July 12, 1877, 4 R. 1038; Carleton v. Thomson, July 30, 1867, 5 Macph. (H. of L.) 151.