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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - The Duke of Portland v. The Duke of Portland's Trustees [1882] ScotLR 19_500 (16 March 1882)
URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0500.html
Cite as: [1882] ScotLR 19_500, [1882] SLR 19_500
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SCOTTISH_SLR_Court_of_Session
Page: 500↓
Court of Session Inner House First Division.
v.
Facts:
The proprietor of large heritable and moveable estate in Scotland conveyed the whole to trustees, with directions to settle the heritage, “as soon as practicable” after his death, on a series of heirs in strict entail; the corporeal moveables on the lands he directed his trustees to settle upon the same series of heirs, “under strict prohibition against selling or disposing of the same, except such articles and portions thereof as shall be necessary to be sold or parted with in the usual or ordinary course of business in the management of my farms;” all other moveable estate he directed to be invested in land, to be entailed on the same series of heirs. The trustees having in the course of management of the farms sold certain crops and stocking— held that the price so obtained fell to be paid to the first of the series of heirs of entail, the exception above quoted being an exception from the prohibition only, and not from the conveyance.
By trust-disposition and settlement, dated 17th January 1871, the late Duke of Portland conveyed to trustees his whole estate in Scotland, with directions to settle, “as soon as practicable” after his death, the whole landed estate in strict entail on a certain series of heirs. He further provided—“In the third place, my said trustees shall settle upon the same series of heirs all corporeal moveables belonging to me situated in Scotland, under strict prohibition against selling or disposing of the same, except such articles and portions thereof as shall be necessary to be sold or parted with in the usual or ordinary course of business in the management of my farms, or my harbours at Troon, or elsewhere out of doors on my landed estates in Scotland. And in the fourth place, my said trustees shall realise my other moveable or personal estate in Scotland, and shall dispose of the same in such way as I shall by any writing under my hand direct and appoint; and failing such direction or appointment, my said trustees shall invest the same in the purchase of lands in Scotland, in the counties of Ayr and Caithness, or wholly in one of these counties, and shall settle the lands so to be purchased, by deed or deeds of strict entail, upon the series of heirs pointed out in the second purpose of this trust.” He further gave his trustees “power to manage and administer the trust-estate hereby conveyed during the subsistence of this trust, and to do and execute all acts and deeds that shall be necessary and proper for fully carrying out the purposes hereof; and as it may be desirable to exchange certain of the lands now belonging or which may belong to me at my death for other lands more conveniently situated …. I hereby specially empower and authorise my trustees, with consent of the heir for the time entitled to the beneficial use and enjoyment of my said estates, to exchange such parts of the lands now belonging or that may belong to me at my death, as they may think proper, for other lands which it may appear to them are more conveniently situated as aforesaid, and to execute all deeds necessary for that purpose.”
At the time of his death the late Duke held in his own occupation several of the farms on his Ayrshire and Caithnesshire estates, as also the harbours at Troon and Lybster, and certain furnished houses. On his death his successor, the present Duke, resolved not to manage the farms himself, but to let them to tenants. With this view, the crop, stock, and implements on those farms were sold by the trustees, with the consent and approval of the Duke, and realised £12,000.
A question arose between the present Duke and the trustees of the late Duke as to the disposal of this sum in accordance with the provisions
Page: 501↓
of the above-mentioned deed of settlement, and the present Special Case, to which the Duke was the first party and the trustees were the second parties, was adjusted, and the opinion of the Court asked upon the following questions—“(1) Does the exception contained in the third purpose of the said trust-disposition and settlement apply only to the prohibition against selling and disposing? (2) If so, do the moneys realised from the sales of the corporeal moveables which have been sold, as above mentioned, fall to be handed over to the first party in lieu of the articles so sold? or (3) Does the exception apply to the articles themselves directed to be settled, so as to bring the excepted articles under the operation of the last purpose of the settlement?” Argued for the first party—The scheme does not admit of the trustees stepping in and administering at all. There was no intermediate administration provided for. The moveables should, like the heritage, have been conveyed so soon as practicable after the death of the Duke of Portland, and the accident of the conversion of these moveables into money should not affect the right of the beneficiary.
Argued for the second party—The whole purpose of the truster must be taken into view, without looking to the details of the machinery by which it is to be carried out. The main object is to tie up upon the heirs of tailzie the whole estate, heritable and moveable, as far as that was possible. The Duke did contemplate an intermediate administration, for he makes a provision for excambion, and for the expense of management.
Authorities— Graham v. Stewart and Another (Lynedoch's Trustees), March 15, 1852, 15 D. 558; Kinnear v. Kinnear, March 20, 1877, 4 R. 705; Marquis of Bute v. Lady Bute's Trustees, &c., December 3, 1880, 8 R. 191; Ersk. ii. 2, 1 and 3.
The Lords made avizandum.
At advising—
But the exception in the third provision of the settlement raises a question of some little difficulty. “In the third place, my said trustees shall settle upon the same series of heirs all corporeal moveables belonging to me situated in Scotland, under strict prohibition against selling or disposing of the same, except such articles and portions thereof as shall be necessary to be sold or parted with in the usual or ordinary course of business in the management of my farms or my harbours at Troon, or elsewhere out of doors on my landed estates in Scotland.” These may be, and to a certain extent have been sold. Are those articles excepted from the conveyance, or from the prohibition against selling? Now, I am of opinion that the exception is against the prohibition, and not against the conveyance. It seems a very natural exception against the prohibition. The corporeal moveables in this deed mean everything that has a corpus. Light is thrown upon this by another part of the deed. He conveys “all and sundry moveable or personal means and estate in Scotland, corporeal and incorporeal, of every kind and denomination.” Then follow words including a variety of things, and things clearly incorporeal, viz., “moneys belonging to me lying in bank or elsewhere in Scotland, and shares, stocks, funds, debts, arrears of rent and feu-duties,” &c., &c. All that is an enumeration of incorporeal moveables. Consequently “corporeal” means everything that has a corpus. “Corporeal” and “incorporeal” have no technical meaning in the law of Scotland. They must be taken in their popular sense, which is much the same as that of the Roman law.
By the third provision he intended that the trustees should convey everything that had a corpus, but then it occurred to him that if he prevented all power of sale inconveniencies would arise. Certain articles would get worn out in time and become useless. The exception to the prohibition to sell related only to “such articles and portions thereof as shall be necessary to be sold or parted with in the usual or ordinary course of business in the management of my farms or my harbours at Troon, or elsewhere out of doors on my landed estates in Scotland.” He intended to except farm implements, stocking, apparatus, &c. There was no reason why these should not be conveyed to the heir under “corporeal moveables,” but it was necessary to give a power of sale to prevent embarrassment. The exception is equivalent to a power of sale; and the money realised belongs to the party to whom the corporeal moveables belonged prior to the sale, namely, to the Duke of Portland. I am therefore for answering the first and second questions in the affirmative. The third question is superseded.
Page: 502↓
The Lords answered the first and second questions in the affirmative.
Counsel for the First Party — Robertson — Pearson. Agents—Melville & Lindesay, W.S.
Counsel for the Second Parties—Mackintosh—Gillespie. Agents—Gillespie & Paterson, W.S.