Scottish Court of Session Decisions

Lieutenant-General Thomas Lord Lynedoch died on 18th December 1843, leaving a trust-disposition and settlement dated 20th June 1821, and recorded in the Books of Council and Session 30th December 1843, by which he gave, granted, and disponed to the trustees therein named his whole heritable and moveable estate for the purposes therein mentioned, and inter alia, “ Fourthly, That after fully accomplishing the purposes aforesaid, if any of my lands and heritages before disponed shall remain unsold, my said trustees shall in due form of law dispone and convey the same to the heirs of entail called after me in and by a certain deed of entail executed by Thomas Græme, sometime of Balgowan, and John Græme, his son, dated on or about the 7th day of February and 9th day of June in the year 1726, recorded in the Register of entails on or about the 30th day of December in the same year, under all the conditions, provisions, and clauses prohibitory, irritant, and resolutive in the said deed of entail contained, so far as the same may be applicable, and so as to form a valid and effectual entail according to the law of Scotland; and shall also lay out the remainder of my personal estate and effects, if any be, as soon as convenient purchases of land in the county of Perth shall offer, in purchasing lands as aforesaid, and

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when the lands are so purchased to dispone the same, or take the dispositions and conveyances thereof, to and in favour of the heirs of entail called after me in and by the aforesaid deed of entail executed by the said Thomas Græme and John Græme, his son, dated and recorded as aforesaid, under all the conditions, provisions, and clauses, prohibitory, irritant, and resolutive in the said deed of entail contained, so far as the same may be applicable, and so as to form a valid and effectual entail according to the law of Scotland.”

The destination in the Balgowan entail, which was dated in 1726, was to Thomas Græme, the entailer, as institute, and failing him to John Græme, his eldest son, and failing him to Thomas Graeme, his eldest son, failing them to the heirs-male of the body of the said Thomas, failing them to the other sons of John Græme in their order and the heirs-male of their bodies, which failzieing to David Graeme, his (the entailer's) second son, and the heirs-male of his body, which failzieing to Robert Græme, his third son, and the heirs-male of his body; which failzieing to Thomas Graeme, his fourth son, and the heirs-male of his body; “which failzieing, to Patrick Græme, my fifth son, in trust for the use and behoof of the heirs-male of his body, and the other after heirs of entail; and failzieing of him by decease, to the said beirs-male of his body in fee, and the heirs-male of their bodies, for their own proper uses and behoofs.”

Lord Lynedoch, the truster, dying without issue, was succeeded in the entailed estate of Balgowan and others by Robert Græme, grandson of Robert, the third son of Thomas Græme, the maker of the Balgowan entail. Robert Græme, the grandson, was likewise the person in whose favour the entail directed by the trust-deed fell to be made. He was advised, however, that the entail of Balgowan was defective in the prohibition against sales, and he therefore sold Balgowan, and brought against the heirs of entail an action of declarator that the entail of Balgowan was defective. The entail was found defective as reported in Graham v. Murray, 10 D. 380, affd. 6 Bell's App. 441. Robert Græme then raised an action against Lord Lynedoch's trustees to have it found and declared that they were bound to hand over the trust-estate to him in fee-simple, upon the ground that the entail they were bound to make was a defective entail. This action was decided in favour of the trustees, as reported in Graham v. Lord Lynedoch's Trustees, 15 D. 558, affd. 2 Macq 295. In consequence of these and other litigations the trustees did not make the entail which they were required by the settlement to make until the year 1860. On 11th January 1860, Sir Patrick Murray Thriepland of Fingask, Bart., as sole survivor of the accepting and acting trustees, original and assumed, of Lord Lynedoch, executed a disposition and deed of entail, which was recorded in the Register of Entails the 21st day of January 1860, and in the Books of Council and Session the 29th day of February 1860. This disposition and deed of entail narrated the terms and provisions of the said trust-disposition and settlement and codicil, and additional trust-disposition of Lieut. General Thomas Lord Lynedoch, and set forth that the first, second, and third of the trust purposes of said trust-disposition and settlement and codicil, and additional trust-disposition, “have been implemented, and that after the accomplishment thereof, the lands and others hereinafter disponed which remain unsold form the whole trust-estate falling under the fourth purpose of” the said trust-disposition and settlement, by which purpose the trustees were directed to dispone and convey the same, in due form of law, to the heirs of entail called after Lieut.-General Thomas Lord Lynedoch, in and by the said deed of entail executed by Thomas Græme of Balgowan, and John Græme, his son. Then followed the destination contained in the said deed of entail, after which the disposition and deed of entail stated that owing to the failure of the previous heirs called, “John Murray of Murrayshall, advocate, now John Murray Graham of Murrayshall and Balgowan, is the person entitled to be called as institute of entail and first disponee in the deed of entail to be executed in implement of the said fourth purpose of the trust specified in the said trust-disposition and settlement of the said Thomas Lord Lynedoch, he the said John Murray Graham being eldest son of the now deceased Andrew Murray of Murrayshall, who was eldest son of John Græme, afterwards called John Murray of Murrayshall, who was eldest son of Patrick Græme, who was fifth son of the said Thomas Graham, the tailzier, and being as such the first person called by the destination of said deed of entail of Balgowan to succeed after the said Robert Graham (otherwise Græme), who was entitled to succeed and did succeed immediately after the said Thomas Lord I.ynedoch under the same, and that the other heirs and substitutes of taillie called to the succession of the lands and others hereinafter disponed, are the heirs and substitutes of taillie called by the said deed of entail of Balgowan after the said John Murray Graham: Therefore, in implement of the said fourth purpose of the trust, I the said Sir Patrick Murray Thriepland, Baronet, as sole survivor of the trustees, original and assumed, who accepted of and acted in the trust created by the said Thomas Lord Lynedoch, as above narrated, assign, dispone, and convey, with and under the prohibitions, conditions, restrictions, and provisions, and clauses irritant and resolutive after-mentioned, and also with and under the clause or procuratory authorising registration in the Register of Entails hereinafter insert, to and in favour of the said John Murray Graham (formerly called John Murray of Murrayshall), advocate, and the heirs-male of his body in fee, and for their own proper uses and behoofs; which failing to Andrew Murray, second surviving son of the said Andrew Murray of Murrayshall, and superintending engineer of Her Majesty's Dock Yard, Portsmouth, in fee, and for his own proper use and behoof; whom failing to Henry Stewart Murray, eldest son of the said Andrew Murray, and to the heirs-male of his body; whom failing, to any other sons pro created or to be procreated of the body of the said Andrew Murray, successive according to the priority of their birth and order of succession, and to the heirs-male of their bodies respectively, all in fee, and for their own proper uses and behoofs respective;” whom failing, to the other substitutes therein mentioned, All and Whole the lands of Balinbrich and Littlehaugh now called Bertha Park. The other heirs-substitute in the

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deed were the whole of the male descendants of the body of Andrew Murray of Murrayshall alive at the time of the execution of the deed, and were called separately and nominatim.

John Murray Graham, the institute to the entail, completed a title to the estates, and paid succession-duty at the rate of 6 per cent. He died on 17th January 1881 without leaving male issue, and so the destination to the heirs-male of his body failed. Andrew Murray, the first substitute called in the disposition and deed of entail upon the failure of the destination to John Murray Graham, the institute, and the heirs-male of his body, died on or about 30th October 1872, and so predeceased the said John Murray Graham, the institute, on whose death, therefore, without male issue, the following part of the destination came into operation:—“Whom failing to Henry Stewart Murray, eldest son of the said Andrew Murray, and to the heirs-male of his body.”

Henry Stewart Murray (afterwards Graham) completed his title by decree of special service as “nearest and lawful heir of tailzie and provision in special of the said deceased John Murray Graham.” It was admitted that he was a “successor” within the meaning of the Succession Duty Act 1853 (16 and 17 Vict. c. 51), the question being whether his “predecessor” in the true sense of that Act was Lord Lynedoch or John Murray Graham. In the former case the succession duty would be, under section 10 of the Act, 6 per cent., in the latter it would be 3 per cent.

This was a Special Case under the Act 19 and 20 Vict. c. 56, at the instance of the Lord Advocate against Henry Stewart Murray Graham, to have this question as to the amount of succession-duty payable by him settled.

The Lord Advocate maintained that the late Lieutenant-General Thomas Lord Lynedoch was the “predecessor,” within the meaning of the “Succession-Duty Act 1853,” of Henry Stewart Murray Graham, and claimed succession-duty at the rate of 6 per cent. under sec. 10 of the Act, being the rate applicable to the relationship of the successor Henry Stewart Murray Graham to Lord Lynedoch, the said Henry Stewart Murray Graham being a nominatim, substitute in the entail, and a descendant of a brother of the grandfather of Lord Lynedoch.

The defender maintained that his predecessor was his uncle John Murray Graham, that therefore as he was a descendant of a brother of the “predecessor” the duty should be 3 per cent. He contended “that the trustees were bound to execute the entail as at the date of the death of the truster, and to take the original destination of the Balgowan entail totidem verbis. Further, that Andrew Murray of Murrayshall being alive at the date of the death of the truster, and he (the defender) being unborn, he could only have been called along with the late John Murray Graham as an heir-male of the body of Andrew Murray of Murrayshall. The defender also contended that he was in titulo to reduce the infeftments of his uncle and himself, and to compel a disposition and deed of entail from the trustees containing a destination in proper form, and this being so, he submitted that he should not be put to the expense of mere conveyancing for the purpose of holding under a destination which would exclude the claim of the Lord Advocate.

The questions of law submitted to the Court were—“(1) Who was the predecessor of the defender within the meaning of the Succession—Duty Act 1853 (16 and 17 Vict. c. 51)? (2) What is the rate of duty to which the succession of the defender is liable.”

On 15th July 1881 the Lord Ordinary ( Fraser) pronounced this interlocutor:—“The Lord Ordinary having considered the cause, answers to the queries—1st, That the predecessor of the defender, within the meaning of the Succession—Duty Act 1853, was Lord Lynedoch; 2dly, That the rate of duty to which the defender is liable is 6 per cent., and finds him liable in that rate accordingly, and decerns: Finds the Lord Advocate entitled to expenses, &c.

“ Opinion.—Lord Lynedoch, who died on 18th December 1843, was heir of entail in possession of the estate of Balgowan. He left a trust-disposition and settlement, whereby he directed his trustees, after payment of debts and legacies, to dispone his fee-simple lands, and other lands which his trustees were authorised to purchase, ‘to the heirs of entail called after me in and by a certain deed of entail executed by Thomas Graeme,’ his great-grandfather. By this entail, dated in 1726, Thomas Graeme destined his lands of Balgowan to his five sons and the heirs of their body in succession. At the death of Lord Lynedoch in 1843 the nearest heir was Robert Graham, the descendant of the third son.

Robert Graham succeeded to the entailed estate of Balgowan, and instituted an action to have it found and declared that the entail was defective, and that he was entitled to sell the estate. Judgment to that effect was pronounced by the Court of Session, and affirmed by the House of Lords ( Graham v. Murray, 10 D. 380; Murray v. Graham, 6 Bell's Apps. 441). Robert Graham thereupon instituted another action, to have it found and declared, that as the entail of the fee-simple estates which Lord Lynedoch had directed his trustees to make was to be under all the conditions, provisions, and clauses, prohibitory, irritant, and resolutive, in the deed of entail of 1726, it must therefore be defective; and that therefore he was entitled to have the whole trust-estate conveyed to him in fee-simple. But inasmuch as Lord Lynedoch had directed the entail to be made ‘so as to form a valid and effectual entail according to the law of Scotland,’ the action proved unsuccessful for the pursuer Robert Graham; and the trustees had therefore to perform the duty of entailing the fee-simple property under a valid entail. The judgment in this action was not pronounced until June 1855 ( Graham v. Stewart, 2 Macq 295).

During the pendency of these actions, it was only reasonable that Lord Lynedoch's trustees should not execute the deed of entail which they were directed to make. If Robert Graham's second action had been successful, the expense of executing the deed would have been thrown away; and no one can blame the trustees, therefore, for what they did or delayed to do. But at the same time it was perfectly competent for them to have executed such a deed, and one of the trustees, Andrew Murray of Murrayshall, would have been called as the first substitute. The institute in such an entail would have been Robert Graham, who did not die until 18th March 1859. He left no children, and the next

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heir of entail after Robert Graham, as at the date of Lord Lynedoch's death, was Andrew Murray of Murrayshall, who died in 1847, he being the grandson of the fifth son of the entailer. If the course had been adopted of executing the deed of entail immediately after Lord Lynedoch's death, Henry Stewart Murray, the second party to this case (the grandson of Andrew Murray of Murrayshall), would have been called to the succession as an heir-male of the body of the latter.

But this was not the course that was followed. The deed of entail which was directed to be executed by Lord Lynedoch was not executed until 11th January 1860, when the original trustees were dead. It became the duty then of the sole surviving acting trustee—Sir Patrick Murray Thriepland of Fingask—to carry out the purposes of the trust by executing an entail, giving effect to the following destination in Thomas Græme's deed of entail,’ which failzieing to Patrick Græme, my fifth son, in trust for the use and behoof of the heirs-male of his body, and the other after heirs of entail; and failzieing of him by decease, to the said heirs-male of his body in fee, and the heirs-male of their bodies, for their own proper uses and behoofs.” Now, in 1860, the heir-male of the body of Patrick Græme was John Murray of Murrayshall, advocate, the eldest son of Andrew Murray. The lands were disponed to him as institute in the following terms:—‘To and in favour of the said John Murray Graham (formerly called John Murray of Murrayshall), advocate, and the heirs-male of his body in fee, and for their own proper uses and behoofs; which failing to Andrew Murray, second surviving son of the said Andrew Murray of Murrayshall, and superintending engineer of Her Majesty's Dockyard, Portsmouth, in fee, and for his own proper use and behoof; whom failing to Henry Stewart Murray, eldest son of the said Andrew Murray, and to the heirs-male of his body; whom failing,’ &c. Henry Stewart Murray is the second party to this case.

Now, if there had been no specialty in the case there could be no difficulty in settling who was the predecessor under the Succession Duty Act, and what was the rate of duty payable. There is to be found in the decisions (all of which are referred to and commented upon in the last of them— The Lord Advocate v. Earl of Zetland, December 5, 1876, 4 R. 199— aff. February 12, 1878, 5 R. 51)—one plain rule of construction, viz., that if the property be destined to a person named and his heirs, each separate person so named takes by disposition from the settler, and his heirs take by devolution of law from him. Therefore when any person takes by disposition the settler or entailer is the predecessor, and when by devolution of law the last possessor is the predecessor.

John Murray Graham, the institute in the entail, paid succession-duty at the rate of 6 per cent., upon the footing that Lord Lynedoch, the settler, was his predecessor; and according to these decisions, and looking merely at the deed of entail under which the claimant Henry Stewart Murray possesses the estate, Lord Lynedoch must be held to be his predecessor also. He is specially called by name as one of the substitutes of the entail, and is thus the head of a new stirps. But it is said that if the trustees had done their duty by immediately upon Lord Lynedoch's death executing the deed of entail in favour of Robert Graham, whom failing Andrew Murray of Murrayshall, and the heirs-male of his body, both the claimant and John Murray would have taken by devolution of law as the heirs of the body of Andrew Murray, and so would have escaped the high duty. It is said the trustees must be held to have done that which they might have done, and that the Court must now deal with the case as if the entail had been executed in 1843, and as if the conveyance made by the trustees in 1860 were reduced and set aside. The trustees undoubtedly might have executed the deed of entail before 1860, but pending the challenge by Robert Graham as to their power to do so, no court of law would have compelled them to do it.

Now, it is in these circumstances that the Crown find the claimant Henry Stewart Murray in possession of the estate (as set forth in his decree of special service), ‘under and by virtue of the foresaid disposition and deed of entail, which is dated and recorded in the register of tailzies as aforesaid’ ( i.e., in 1860). They are entitled to call upon him to account in the character under which he possesses, and not upon the footing that a different course—which would have involved payment of a lesser duty—could have been adopted. The Court must apply the law to the facts of the case, and the result is to find for the Crown in answer to both the questions put.”

The defender reclaimed, and argued — The rule of law with regard to persons called under a deed of entail, to the payment of succession—duty was that each person took by devolution of law who was within the same stirps as his predecessor; when a new stirps came in, then the person took by disposition from the maker of the entail— Lord Advocate v. Lord Saltoun, Dec. 16, 1858, 21 D. 124, aff. 3 Macq. 659. In this case John Murray of Murrayshall was the predecessor of Henry Stewart Murray Graham, the defender, because according to the intention of the truster they were members of the same stirps. Had the trustees carried out the directions of the truster, the destination would have been to Patrick Græme and the heirs-male of his body, or to Andrew Murray of Murrayshall, and the heirs-male of his body. But although the form of the conveyance was against this contention, yet he was entitled to get at the substance of the transaction— Lord Advocate v. Lord Zetland, Dec. 5, 1876, 4 R. 199, aff. 5 R. (H. of L.) 51— Earl of Breadal bane v. Lord Advocate, June 9, 1870, 8 Macph. 835. He could compel the trustees to execute a new deed— Ochterlony v. Ochterlony, Feb. 24, 1877, 4 R. 587; but quod fieri debet infectum valet. Or he could bring a declaratory adjudication against the heir of the last trustee. The payment by John Murray of 6 per cent., which he was bound in any event to do as first member of a new stirps, had enfranchised that stirps, and the duty payable by Henry Stewart Murray Graham was therefore only 3 per cent. With reference to the pursuer's argument founded on prescription, it must fail, because in order to get quit of Lord Lynedoch's deed it would be necessary to get rid of the necessary prescription of forty years.

Additional authority—Hanson on Succession—Duty, 248.

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Argued for Lord Advocate—There was here t prescriptive title under the Conveyancing (Scot land) Act 1874—See 34 Bell's Prin., sec. 2022 Bell's Illus., ii. 583. Where there were several ways of carrying out a direction, the mode adopted must be held binding, provided it was a habile way— Lord Advocate v. Miller's Trustees, July 4. 1884, 11 R., Lord Pres., at p. 1057.

At advising—