Scottish Court of Session Decisions

At a Registration Court for the county of Peebles William Blackwood objected to the claim of George Jackson Gairns to be entered on the register of voters as “joint tenant and occupant” of the farm of Old Posso, in the parish of Manor. The following were the circumstances of the case:—John Gairns, the claimant's father, who died in 1875, had been tenant, under Sir John Murray Naesmyth of Posso, of the farm and lands of Posso, Kirkhope, and Newholmhope under a lease which excluded all assignees and sub-tenants, legal or conventional, without the consent of the landlord. By minute appended to the tack the landlord passed from this seclusion in so far as to allow the tenant to assign the lease mortis causa in favour of any one or more of his sons he might think proper. John Gairns was also tenant, under a different landlord, of the farm of Kirklawhill. His lease thereof excluded assignees. He died in 1875 leaving a trust-disposition and settlement by which he conveyed to certain persons as trustees, with powers to assume new trustees, and to the disponees and assignees of said trustees—“All and sundry lands and heritages, and other heritable estate of every description, including my leases of the farms of Kirklawhill and Posso, which leases are to be held by my said trustees and destined as after mentioned; as also my whole moveable or personal estate of every description, including the farm stocking upon my two farms aforesaid; and I hereby give to my said trustees such full and unlimited powers of sale, and receiving and discharging the prices, administration and management, and every other power, as could have been exercised by myself when alive.” In the second place, he directed his trustees to hold Kirklawhill and the stocking thereof for behoof of his eldest son and heir, and make over to him, within twelve months of his own decease that farm and the stocking of it, or in the event of his eldest son preferring the lease and stocking of Posso, then that farm and its stocking; or if the proprietor of Kirklawhill should refuse to allow it to pass to the trustees, and insist on its going to the heir-at-law, then his eldest son was to be content with Kirklawhill, and the trustees should “manage the farm of Posso and the stocking thereon for the use and benefit of my younger children other than my heir-at-law.” In the third place, he directed his trustees, as soon after his death as circumstances permitted, to obtain a valuation of the stock at Kirklawhill and Posso, and of certain heritage in Biggar belonging to him, and having ascertained the amount of the money belonging to him at his decease, and his other funds and effects, to hold the same for payment to his children by his first marriage of certain sums in discharge of his obligations to them under his marriage-contract, and to divide what remained into as many parts as there were children of both marriages, and pay these shares to the sons then of age, and daughters then married, at the first term of Whitsunday or Martinmas after his death, and the shares of such as were minors on their reaching majority, “and the shares of daughters on their marriage or majority; and the interest on the minors’ shares to be applied by the trustees for behoof of such minors respectively until the capital of their shares is paid to them; and the shares to the child or children of the second marriage are to be in payment and satisfaction of all claim competent to them under my contract of marriage with their mother; and I authorise my trustees to make such arrangements with my son who is to succeed alternatively to the leases of Kirklawhill and Posso as may enable him to stock and carry on the farm which he is to succeed to, and to leave stock in his hands sufficient for that purpose, for the value of which he shall be debtor to the trustees for behoof of my other children, to be divided among them as above provided.”

John Gairns, the eldest son, took Kirklawhill and the stocking thereon. The claimant George Jackson Gairns was major and had been assumed into his father's trust, and was one of the five acting trustees thereunder. After 1879 the claimant lived at and managed the farm of Posso, annually submitting his books to the trustees, and supplying them out of the profits with the means of paying the rent. He had not been in any way recognised by the landlord as tenant. The trustees were on the valuation roll as tenants of the farm. The beneficiaries under the trust were the claimant, two of his brothers, and two of his sisters.

The Sheriff-Substitute ( Orphoot) rejected the claim.

The claimant took a Case, in which the foregoing facts were stated.

Argued for claimant—The claimant was both a trustee and a beneficiary under the trust, and was in the actual management of the farm. He was thus joint tenant of the farm as trustee, and, besides, he was a beneficiary. His position was just like that of the claimant in the case of Anderson v. Niven,

Page: 117↓

Nov. 8, 1880, ante, vol. xviii., p. 65, 8 R. 4.

Counsel for respondent was not called on.