Scottish Court of Session Decisions

Major-General Edward Mortlock Studd of Oxton, in the county of Devon, died on 6th October 1877 leaving a last will and codicil dated in April and December respectively of the same year, and registered in the district registry attached to the Probate Division of the High Court of Justice at Exeter the 19th January 1878, whereby he appointed his widow Emma Bayly or Studd, Frederick Joliffe Bayly, and Edward Osborn Williams to be his trustees. Major Studd was a domiciled Englishman. Some years before his death he had acquired the lands, teinds, and shooting estate of Banchor in Inverness-shire. His will contained this clause:—“I devise all such and such parts of my manors, messuages, lands and hereditaments, situate in the counties of Devon, of Inverness in Scotland, of Stafford, and of Warwick, and of my estates called The Four Dwellings, The Quinton, and The Farm at ‘Bell End,’ whether in Worcestershire or Stafford-shire, or elsewhere, as consist of freehold of inheritance (which several hereditaments are hereinafter called ‘Edward's Freehold Estate’), to the use of my elder son Edward Fairfax Studd and his assigns, for his life, without impeachment of waste; and after the death of the said Edward Fairfax Studd, to the use of the first and every other son of the said Edward Fairfax Studd successively according to their respective seniorities in tail male, with remainder to the use of my trustees during the life of my younger son Alnod Ernest Studd, upon the same trusts as hereinafter declared concerning the real estate next hereinafter devised to my trustees, and called ‘Alnod's Freehold Estate;’ and after the death of the said Alnod Ernest Studd, to the use of the first and every other son of the said Alnod Ernest Studd successively according to their respective seniorities in tail male, with remainder to the use of the first and every other son of the said Edward Fairfax Studd successively according to their respective seniorities in tail, with remainder to the use of the first and every other daughter of the said Edward Fairfax Studd successively according to their respective seniorities in tail, with remainder to the first and every other son of the said Alnod Ernest Studd successively according to their respective seniorities in tail, with remainder to the first and every other daughter of the said Alnod Ernest Studd successively according to their respective seniorities in tail, with remainder,” & c. The will also provided “that my trustees shall have the fullest powers of determining what property passes under any specific devise or bequest contained in this my will or any codicil hereto, … and generally, of determining all matters as to which any doubt, difficulty, or question may arise under or in relation to the exercise of the powers or the execution of the trusts of this my will or any codicil hereto.”

The expression “freehold of inheritance” was by joint-minute of the parties to this case, who consulted English counsel as to its terms, declared to denote an estate or right in lands which (as is the case with all lands in England) are held in fee of the Crown or of a subject-superior (to the exclusion of copyholds and leaseholds), and such that the estate or right is not merely for life or a term of years, but on the death of the holder without having received such power of disposition as the law allows him, will descend to his heir-general or the heir of his body, according as the estate is a fee-simple or an estate tail. “Without impeachment of waste” was declared by the same joint-minute to mean that the person so holding “may cut timber in a husbandmanlike manner for his own benefit, and open mines, quarries, and the like, as well as work existing ones, and permit buildings, fences, and the like to dilapidate with impunity; but may not wantonly pull down houses or fell ornamental timber, or commit other injury of a like nature.”

The Titles to Land Consolidation Act 1868 (31 and 32 Vict. cap. 101), sec. 20, provides that a conveyance of heritage shall not from and after the commencement of that Act be invalid by reason of the absence of the word “dispone” or other words of de presenti conveyance; “and where such deed or writing shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain with reference to such, lands any word or words which would if used in a will or testament with reference to moveables be sufficient to confer upon the executor of the grantor, or upon the grantee or legatee of such moveables, a right to claim and receive the same, such deed or writing, if duly executed in the manner required or permitted in the case of any testamentary writing

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by the law of Scotland, shall be deemed and taken to be a general disposition of such lands within the meaning of the 19th section hereof by the granter of such deed or writing in favour of the grantee thereof, or of the legatee of such lands, and shall be held to create, and shall create, in favour of such grantee or legatee an obligation upon the successors of the granter of such deed or writing to make up titles in their own persons to such lands and to convey the same to such grantee or legatee; and it shall be competent to such grantee or legatee to complete his title,” & c.

Edward Fairfax Studd, the testator's eldest son, raised this action of declarator against (1) Edward Arthur Studd and Gladys Studd, his own pupil children, to whom Mr Charles Cook, W.S., was appointed curator ad litem; (2) his father's trustees; and (3) his brother Alnod Studd, and the trustees under the trust for his behoof in his father's will; (4) a number of nephews and nieces of the truster, being the whole parties interested in any way in his father's estate. He concluded for declarator (1) that the lands and teinds of Banchor “have vested in the pursuer absolutely, and without any restriction or limitation whatsoever, in virtue of the conveyance or destination thereof contained in the last will and testament of his father Edward Mortlock Studd;” or otherwise (2) that the said lands and teinds fell under the residuary clause of his father's will as property not otherwise disposed of; or otherwise (3) that the said Edward Mortlock Studd, his father, died intestate quoad the said lands and teinds, and that the same now belonged to the pursuer as his father's heir-at-law. All the defenders compeared.

The pursuer pleaded—“(1) The devise or conveyance of such of the testator's manors, messuages, lands, and hereditaments, situate in the county of Inverness as consist of freehold of inheritance, being habile and sufficient to carry the said estate of Banchor with the teinds thereof, the destination thereof is not such as by the law of Scotland imports any restriction or limitation of the pursuer's right, and he is therefore entitled thereunder to the said estate absolutely in fee; or (2) Separatim, the language of the said special devise or conveyance being incapable of interpretation according to the law of Scotland, the said estate of Banchor, with the teinds thereof, falls to be dealt with as part of the residue of the testator's estate, and the pursuer is entitled thereto under the residuary bequest in his favour contained in the said will; or (3) Separatim, the said estate of Banchor and the teinds thereof are intestate succession of the said deceased Edward Mortlock Studd, and fall to the pursuer as his heir-at-law.”

The defenders pleaded—“(1) The defenders, the trustees of the late General Studd, are bound under the provisions of his last will to make up a title in their own names to the estate of Banchor, with the teinds thereof, and thereafter to execute a deed of strict entail, settling the estate on the series of heirs prescribed in the said last will; or (2) Separatim, the right of the pursuer in the estate of Banchor, with the teinds thereof being limited by the terms of the said last will to a right of liferent only, he is not entitled to decree in terms of the first conclusion of the summons. (3) The terms of the special devise or conveyance of the lands in Inverness-shire being effectual to convey the estate of Banchor, it does not fall to be dealt with under the residuary clause of the will, or as part of the testator's intestate succession.”

The Lord Ordinary pronounced this interlocutor:—

“The Lord Ordinary having considered the cause, Finds (1) that according to the sound construction of the last will of the deceased Major-General Edward Mortlock Studd of Oxton, in the county of Devon, dated 21st April 1877, and codicil thereto, dated 14th November 1877, the lands of Banchor, in Inverness-shire, belonging to the testator at the time of his death, were destined by him to his eldest son Edward Fairfax Studd, and to the heirs-male of his body in fee, whom failing to the testator's trustees during the life of the testator's younger son Alnod Ernest Studd, and after his death to the heirs-male of the body of the said Alnod Ernest Studd, whom failing to the heirs-female of the body of the said Edward Fairfax Studd, whom failing to the heirs-female of the body of the said Alnod Ernest Studd, whom failing to certain other persons named: Finds (2) that the said bequest imports a right of fee in said lands in the person of the said Edward Fairfax Studd: Therefore decerns and declares in terms of the first conclusion of the summons.”

He added this note:—“The difficulty in the present case arises from the not uncommon practice of a person ignorant of the rules regulating the conveyance of real property in one country, attempting to settle such property by means of an instrument prepared according to the rules of another country in which the rules of conveyancing are entirely different.

The late General Studd was proprietor of estates in various counties in England, and also of the estate of Banchor in Inverness-shire in Scotland, the succession to all of which he regulated, or attempted to regulate, by his last will and testament, which is in the English form, and is dated 21st April 1877, and codicil thereto, dated 14th November 1877. Although by that will he appointed trustees, he did not devise these estates to the trustees, but he devised them directly to his eldest son Edward Fairfax Studd, and other parties, in the following terms, viz.:—‘I devise all such and such parts of my manors, messuages, lands, and hereditaments situated in the counties of Devon, of Inverness in Scotland, of Stafford, and of Warwick, and of my estates called The Four Dwellings, The Quinton, and the farm at ‘Bell End,’ whether in Worcestershire, or Staffordshire, or elsewhere, as consist of freehold of inheritance (which several hereditaments are hereinafter called ‘Edward's Freehold Estate’) to the use of my elder son Edward Fairfax Studd, and his assigns, for his life, without impeachment of waste; and after the death of the said Edward Fairfax Studd, to the use of the first and every other son of the said Edward Fairfax Studd successively according to their successive seniorities in tail male, with remainder to the use of my trustees during the life of my younger son Alnod Ernest Studd, upon the same trusts as hereinafter declared concerning the real estate next hereinafter devised to my trustees, and called ‘Alnod's Freehold Estate;’ and after the death of the said Alnod Ernest Studd, to the use of the first and every other son of the said Alnod Ernest Studd successively according to their respective

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seniorities in tail male, with remainder to the use of the first and every other son of the said Edward Fairfax Studd according to their respective seniorities in tail, with remainder,’ &c., to a succession of persons specified or named.

Now, the first question that is raised in the record is, whether the estate of Banchor is truly and within the sense of this settlement a ‘freehold of inheritance?’ This is a technical English term; but the parties have concurred in stating in the joint-minute that its meaning by the law of England is ‘an estate or right in lands which (as is the case with all lands in England) are held in fee of the Crown or of a subject-superior (to the exclusion of copyholds and leaseholds), and such that the estate or right is not merely for life or a term of years, but on the death of the holder without having exercised such power of disposition as the law allows him, will descend to his heir-general or the heir of his body, according as the estate is a fee-simple or an estate tail.’ The estate of Banchor, with the teinds thereof, was acquired and held by General Studd in fee-simple, and by the ordinary feudal tenure of land in Scotland, and I have therefore no hesitation in holding that it passed under the devise as a ‘freehold of inheritance.’ And if I had had any doubt upon the point, it would have been removed by the fact that the trustees of the will have the fullest powers of determining what property should pass under any specific devise or bequest in the settlement, and have in the record expressly declared that they hold the estate of Banchor to have been effectually carried by the devise now under consideration. But a much more important and difficult question is, whether the estate passed under this devise to Edward Fairfax Studd as his absolute property, or is devised to him merely as tenant for life, and after his death to the other persons specified in the will, as under a settlement of strict entail? And he has brought the present action for the purpose of having it judicially declared that the subjects in question are vested in him in fee absolutely and without any restriction or limitation whatsoever. The parties who are called as defenders are the trustees of the will, and his own pupil children, to whom a curator ad litem has been appointed.

These defenders stated in the record a plea to the effect that the devise is truly a devise to the trustees, and that they are bound under the provisions of the will to make up a title in their own names to the estate of Banchor, and thereafter to execute a deed of strict entail thereof, settling it on the series of heirs described in the will. But the defenders now admit in the joint-minute that the estate passed under the devise to Edward Fairfax Studd and the other heirs without the intervention of the trustees. The other plea stated by them, and which is now to be disposed of, is to the effect that whatever may be the nature of the ulterior destination, the right of Edward Fairfax Studd is strictly limited to a right of liferent. In support of this plea it is urged that the will must be construed according to the law of England, and that the same effect must be given to the devise of the Scotch estate of Banchor as would be given by the Courts of England to the devise of the estates in that country. Now, there seems to be no doubt, and indeed the parties are agreed, that by the will the English estates are virtually settled in the terms of a strict entail—that is to say, that they pass in the first instance to Edward Fairfax Studd as tenant for life, or, as we should term it, for his liferent use allenarly, but with more extensive powers of administration than are usually enjoyed by a liferenter in this country; and after his death to the heirs-male of his body in succession, whom failing to the parties specified in their order, all under the rules of strict entail according to the law of England.

Now, I need hardly say that an entail of lands in Scotland cannot be constituted according to the law of this country except in strict compliance with the statutory rules which regulate entails. It is true that where an estate is conveyed to trustees with directions to them to entail it upon a certain series of heirs, the trustees would be bound to obey these directions, and to impose upon the beneficiaries under the trust the fetters of a strict entail, although the settlement containing these directions does not in the general case specify the restrictions, and is not itself prepared in the form of a deed of entail. But where, without the intervention of a trust, the estate is directly conveyed either inter vivos or mortis causa to a series of heirs, it will, although effectual as a conveyance of land, be wholly ineffectual as an entail, unless the prohibitory, irritant, and resolutive clauses required by the Entail Statutes are expressed at length in the deed, or unless under the provisions of recent legislation the conveyance contains a clause expressly authorising registration of the entail in the Register of Taillies. Now, there is nothing of that kind in the present case, and the will is wholly inoperative as an entail of the estate of Banchor; and whatever may be held to be the nature of the right to that estate conferred by the will upon Edward Fairfax Studd and his sons, and the other parties called to the succession, it is not a right which is limited by the fetters of a Scotch entail.

But it is said that it is apparent upon the face of the will that whatever effect may be given to other parts of the devise, the only right which Edward Fairfax Studd was intended by his father to take under this will was a right of liferent, ‘without impeachment of waste,’ the effect of the addition of these words being, according to the admission of parties, to confer upon him various extensive powers of administration. These are stated in the joint-minute to be, inter alia, power to take possession of the estate, both natural and civil, to let leases for agricultural occupation for twenty-one years, to cut down timber in a husbandmanlike manner for his own benefit, and open mines, quarries, and the like, as well as work existing ones, and permit buildings, fences, and the like to dilapidate with impunity, but not wantonly to pull down houses, or fell ornamental timber, or commit other injury of a like nature.

Now, assuming this to be the true construction of the devise according to the law of England, the question to be decided is, whether this Court is bound to give effect to that construction, or is entitled to construe the terms of the will as if it had been a Scotch instrument settling the succession of the Scotch estate? I am of opinion that, as the subject is a landed estate in Scotland, it must be construed with reference to the rules of conveyancing in operation in Scotland. I think

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this doctrine is pretty clearly recognised in the cases of Weir, 1 S. 192, and of Mitchell & Baxter, 2 R. 208. And it humbly appears to me that if this devise is read with the aid of the explanation of its technical terms contained in the joint-minute, it simply resolves itself into a conveyance or bequest of Banchor by General Studd to his eldest son Edward Fairfax Studd in liferent, and the heirs-male of his body in fee, and thereafter to a series of heirs, subject to the restriction of an English entail, to which, as I have explained, effect cannot be given in this country. But according to a long series of decisions from the case of Newland, such a destination to A and his children, born and to be born, but unnamed, even although followed by a destination to other parties, truly imports a fee in A, although the interposition of a trust might have the effect of restricting A to a bare liferent. Upon that point I think it only necessary to refer to the case of Macintosh v. Gordon, 4 Bell's App. 105, as contrasted with the case of Ross v. King, 9 D. 1327, and to the earlier case of Seton, Mor. 4219, as contrasted with Robertson, Mor. Fiar Absolute and Limited, App. 2.

But it is maintained that although such is the rule now universally applied in Scotland in interpreting destinations in these terms, it will not be extended to cases where it clearly appears from other considerations that the testator meant to limit the right of the father to a bare liferent, or at all events to something considerably less than a right of fee. Now, undoubtedly, it may be said that in the present case General Studd obviously intended and expected that the same effect would be given to his wishes regarding his Scotch estates as he knew would be given to them as regards his English estates, and as Edward Fairfax Studd was undoubtedly to be limited to a liferent in England as regards the English estates, he should not have any higher right in the Scotch estates. But I do not think that that is the sound view of the case. The parties have admitted that the will of General Studd contemplated a deed of strict entail of the whole of these estates, not only upon Edward Fairfax Studd as tenant for life, but also upon the heirs-male of his body and the other parties specified. Yet it is quite certain that so far as the entail is concerned the will cannot receive effect in Scotland, and to that extent at all events the will of General Studd cannot receive effect. But if I were to hold that Edward Fairfax Studd is merely to take a right of liferent, then on his death the heirs of his body would, contrary to the will of General Studd, take the estate in fee-simple. Now, this would, I think, be making for General Studd a will entirely different from that which he clearly intended to make. How is it possible for this Court to say that if General Studd had contemplated such a result in the case of his grandsons he would still have limited his son to a bare liferent? It therefore appears to me that it would be a mistake to construe one part of this devise according to the English rules, and the remainder according to our own rules; and that, on the whole, the only safe and satisfactory course to follow in dealing with this devise of a landed estate in Scotland is to construe the whole according to the well-known rules of Scotch conveyancing, and to hold that it is truly a destination of the estate to the pursuer in liferent and to the heirs of his body in fee, whereby he is entitled to the fee of the property. He will thus obtain decree in terms of the first conclusion of the summons, and as in consequence the other conclusions become unnecessary, these may be dismissed.”

The curator ad litem for the pursuer's pupil children reclaimed, and argued—The intention of the testator plainly was that the trustees should make an entail of the estate, and that the pursuer should only have a life interest. The terms of this deed formed a good entail in English law, and the trustees had simply to use the appropriate terms to make that a Scotch entail. At all events, the pursuer was only a liferenter. The language used was technical, but not applicable to Scotland, so that it did not fall under the rule that technical words must be construed technically, but on the contrary it required translation, and when translated was found to import liferent. The rule that a liferent to a father and fee to children unnamed imported a fee in the father had no application to cases where a testator had plainly expressed, in language to which that rule of conveyancing did not apply, that he intended to give a liferent and not a fee. The pursuer might himself make up a title under sec. 46 of the Conveyancing Act of 1874, which, after providing that trustees or executors may complete a title to lands not directly conveyed to them, provides thus—“Provided always that nothing herein contained shall prevent any disponee, grantee, or legatee, to whom such land may be expressly conveyed, granted, or bequeathed by such mortis causa conveyance, grant, or testamentary deed, from completing a title thereto in terms of the Titles to Lands Consolidation (Scotland) Act 1866, where the completion of such title shall not be at variance with the purposes or directions of such mortis causa conveyance, grant, or testamentary deed or writing.”

Authorities— Richmond's Trustees v. Winton, Nov. 25, 1864, 3 Macph. 95; Ross’ Leading Cases (L. R.) i. 406.

Argued for pursuer—This being a deed dealing with Scotch heritage, it was incompetent to translate the language used, which applied to English heritage—Lord Brougham in Yates and Thomson, 1 S. and M'L. 797. Popular language might indeed have been translated, but to technical language technical effect must be given. Now, the incidents of an English tenure such as was referred to by the deed were very different from those of a Scotch liferent, and effect could not therefore be given to the testator's intention under any Scotch tenure, even though they were translated—Stephen's Comm. i. 240 (8th edit.); Bell's Comm. p. 60 (7th edit.); Wardlaw, 2 R. 368. It would be impossible to give the pursuer an estate to be held subject to the peculiar restrictions of the law of England. In a disposition of heritage subject to restrictions the question is not merely as to intention to restrict, but as to the efficacy of the restriction imposed.