Scottish Court of Session Decisions

John Picken, farmer, Mansfield Mains, New Cumnock, died on 12th March 1884. By his trust-disposition and settlement dated 7th February 1884, he conveyed his whole estate to certain trustees for certain purposes. The third purpose of this settlement was—“In the event of my decease during the currency of my present leases of the farms of Lethans and Clocklowie in the parish of New Cumnock, and of Boghead in the parish of Auchenleck, or of any of them, or during the currency of the lease or leases of any other farm or farms whatsoever that I may be in possession of at the time of my decease, I direct and appoint my trustees to carry on, conduct, and manage the whole businesses and concerns of said farms until the respective leases thereof shall expire, and on the terminations thereof, or as soon thereafter as it can be accomplished, to sell and dispose of the whole stock, crop, and farming implements pertaining and belonging respectively thereto.” The fifth purpose provided that “after providing for payment” of an annuity left to his widow by the second purpose, “and fulfilling the foregoing purposes,” his trustees were “to apply the residue of my means and effects, to the extent of a sum not exceeding £10,000 sterling, in the purchase as opportunity offers of such lands and other heritages situated in the county of Ayr as my trustees shall consider eligible, and to convey and make over said lands and other heritages by a valid and effectual deed of strict entail to and in favour of my only child Mrs Jane Watt Picken or Craig, wife of John Craig, ship and insurance broker, Greenock, whom failing to the heirs-male of her body, whom failing to my nephew John Picken, divinity student, son of the said James Picken [his brother, who was one of the trustees nominated], whom failing to the heirs-male of his body, whom failing to the heirs-female of his body, whom all failing to my next nearest heirs and assignees whomsoever, the eldest heir-female and the descendants of her body always excluding heir-portioners and succeeding without division throughout the whole course of succession.” By the sixth purpose his only child Mrs Jane Picken or Craig was appointed residuary legatee in liferent, and by the seventh purpose her children were appointed to the fee of the residue of his estate.

At the date of the truster's death (12th March 1884) he was tenant of the farms of Mansfield Mains and Hill, the leases of which expired at Whitsunday 1885, and of the farms of Lethans and Clocklowie, the leases of which were not to expire till Whitsunday 1897. The trustees on entering on their office sold the farm stock, &c.., on the farms of Mansfield Mains and Hill for about £3500, and proceeded to manage and carry on in terms of the truster's directions the farms of Lethans and Clocklowie. The value of stock on these farms was considerable, but the precise amount was not admitted in these proceedings.

Page: 412↓

This was a petition by the testator's only child before mentioned, Mrs Jean Picken or Craig (who was of full age, and not subject to any legal incapacity) for warrant of payment of the price (which she stated was £3500) of the stock on Mansfield Mains and Hill, which the trustees had sold, and of £7000 as the value of the sheep stock, &c., on Lethans and Clocklowie, or otherwise for delivery to her of that stock. She had one son, John Picken Craig, who was the next heir entitled to succeed to her under the entail directed by her father to be made, and who was a pupil. The next heir entitled to succeed was her cousin John Picken above designed, who was of full age. She prayed that a curator ad litem be appointed to John Picken Craig, and the value of his interest ascertained. The petition was based on the 27th section of the Rutherfurd Act 1848 (11 and 12 Vict. cap. 36), which provides—“That where any money or other property, real or personal, has been or shall be invested in trust for the purpose of purchasing land to be entailed, or where any land is or shall be directed to be entailed, but the direction has not been carried into effect, it shall be lawful for the party who, if the land had been entailed in terms of the trust, would be the heir in possession of the entailed land, and who in that case might by virtue of the Act have acquired to himself such land in fee-simple by executing and recording an instrument of disentail as aforesaid, to make summary application to the Court, as hereinafter provided, for warrant and authority for the payment to him of such money, or for the conveyance to him of such land in fee-simple, and the Court shall, upon such application, and with such consents, if any, as would have been required to the acquisition of such land in fee-simple, have power to grant such warrant and authority.” Section 28 of the Act provides—“And be it enacted, that for the purposes of this Act the date at which the Act of Parliament, deed, or writing placing such money or other property under trust, or directing such land to be entailed, first came into operation, shall be held to be the date at which the land should have been entailed in terms of the trust, and shall also be held to be the date of any entail to be made hereafter in execution of the trust, whatever be the actual date of such entail.”

The petitioner averred that she was “the party who, if the directions of the said trust-disposition and settlement were carried out, would be the heir in possession of the lands to be purchased, and who in that case might, by virtue of the Entail Statutes, acquire to herself such lands in fee-simple by executing and recording an instrument of disentail thereof in terms of the Entail Statutes.”

Answers were lodged by the trustees, who maintained that the petition was incompetent, in respect the period at which the trustees were directed to entail had not yet arrived, and would not arrive till the termination of the whole leases. “Till the leases of these two farms expire—to wit, at Whitsunday 1897—the free proceeds of the trust-estate cannot be ascertained, nor the trust purposes become capable of fulfilment. It will be observed that it is only ‘after providing for payment of said annuity to my widow, and fulfilling the foregoing purposes,’ that the trustees are directed to entail. The foregoing purposes referred to are—payment of debts; giving to the widow the liferent of the household furniture; paying her legacy of £500 and her annuity of £150; carrying on, conducting, and managing the whole business of the farms until the respective leases thereof shall expire, and on the termination thereof, selling and disposing of the whole stock belonging respectively thereto.” In the second place they objected that the Rutherfurd Act did not apply, because there was no sum in their hands representing subjects to be entailed.

The Lord Ordinary ( Trayner) refused the petition.

“ Opinion.—[After stating the facts]—The trustees (who also represent the interest of John Picken, the heir next called to the entailed succession after the petitioner and the heirs of her body) object to the petitioner's demand on the grounds (1) that no right under the trust-deed has yet vested in the petitioner, and (2) that there is not now any entailed estate in fact or by implication of law which can be disentailed.

With regard to the first objection, it has to be observed that under the trust-deed of the late John Picken there is no direct conveyance or gift in favour of the petitioner. The whole estate of the truster is conveyed to his trustees with directions to them at a certain period to make an entail of land to be bought by the proceeds of a part of the estate, under which entail the petitioner will be institute if she survives that period. Unless she survives that period she will take no benefit under the trust-settlement of John Picken— Bryson's Trustees v. Clark, 8 R. 142; Stodart's Trustees, 8 Macph. 667. As she has therefore at present no vested interest under the trust-deed, and the time has not arrived at which the trustees are directed to convey any right to her, I am of opinion that she has no title to insist in the present petition.

The second objection stated by the trustees appears to me also to be well-founded. I am of opinion that the 27th section of the Rutherfurd Act is not applicable to the circumstances of the present case. That section provides—[ His Lordship here quoted the clause]. I think this clause presupposes the existence of a sum of money in the hands of trustees with which they are directed to purchase land to be entailed. In such a case the money represents the subjects to be entailed, and the person who would be entitled to disentail the lands (if the entail had been made) is declared entitled to the money itself, thereby saving the expense of entailing and disentailing. But there is no such sum of money in the hands of Mr Picken's trustees or elsewhere at this moment. What the trustees in this case are directed to expend in the purchase of land to be entailed is ‘the residue’ of Mr Picken's estate, but not exceeding £10,000; but what that residue may be, or who the person entitled to get it, can only be ascertained after the purposes of the trust have been fulfilled. Mr Picken's trustees could not be called upon just now to expend any part of the trust-estate in the purchase of land to be entailed, because at this moment they do not hold any money dedicated to that purpose; and if they have not money to purchase land to be entailed, they have no money which the petitioner (assuming that otherwise she had a title to it) can demand under section 27 of the Rutherfurd Act.

The petitioner urged alternatively that if she

Page: 413↓

was not entitled to the stock, &c., on the farms, or the value of it, she was at least entitled to the sum of £3500, now in the hands of the trustees, realised by the sale of a part of the estate. I cannot distinguish in this manner between parts of the trust-estate. The reasons I have already given for deciding against the petitioner's claim as a whole are applicable also to this alternative demand. In managing the farms under their charge in terms of the truster's directions the trustees may incur obligations which they are entitled to meet out of the trust-estate. To deprive them of the power of doing so might so reduce the ultimate residue of the truster as to defeat the leading purpose of his trust-deed. But apart from this, I repeat that it is ‘the residue’ of his estate which the truster directed to be expended on the purchase of land to be entailed when that had been ascertained and realised, and not any part of his estate which in the course of management or realisation might happen to come into his trustees’ hands.”

The petitioner reclaimed, and argued—(1) The trust-deed came into operation for the purposes of the disentailing clauses of the Rutherfurd Act at the date at which the deed placing the money under trust came into operation as a deed for placing money under trust for the ultimate purpose of buying land to be entailed, and that of course was the truster's death. At his death, then, there came into existence an entailed estate and an heir of entail. The time in the circumstances had therefore arrived for making this application— Dickson v. Dickson, June 8, 1855, 17 D. 814; Black. Auld, November 5, 1873, 1 R. 133, opinion per Lord President, p. 146; Gordon v. Gordon, March 2, 1866, 4 Macph. 501. (2) She had moreover a vested interest a morte testatoris in the trust-estate— Lindsay's Trustees, November 26, 1880, 12 R. 964; M'Alpine, &c., March 20, 1883, 10 R. 837; Ross' Trustees, December 18, 1884, 12 R. 378. In Stodart's Trustees, March 5, 1870, 8 Macph. 667, cited by the Lord Ordinary, there was no immediate interest given as here in the estate.

The trustees replied—They had been directed to make an entail when the leases of the farms came to an end. If the petitioner survived that period she would be institute under the entail, and then she might make her application. If she did not survive, she would take no interest under the trust-deed— Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142; Stodart's Trustees, March 5, 1870, 8 Macph. 667. This application, then, was premature. In 1897, when the leases had expired, but not sooner, Black v. Auld would be an authority for the petitioner. (2) There could not in the above circumstances be any vesting.