Scottish Court of Session Decisions

These were two actions at the instance of the Earl of Home, the first being at his instance as immediate lawful superior of parts of the estate of Kinnordy, in the county of Forfar, against Sophia Georgians Lyell, the sole surviving, accepting, and acting trustee of her father the late Charles Lyell, Esquire, of Kinnordy, under his trust-disposition and settlement, dated 28th May 1836, concluding for declarator that in consequence of the death of Sir Charles Lyell, who was the vassal last vest and seised in the said lands, a casualty, being one year's rent of the lands, became due to the pursuer, as superior, upon 22d February 1875, the date of Sir Charles Lyell's death, and for decree against the defender for £5000; the second being at his instance as immediate lawful superior of parts of the estate of Glasswell, in the county of Forfar, against George Auldjo Jamieson, C.A., as judicial factor under a second trust-disposition and settlement executed by Charles Lyell, Esquire, also dated 28th May 1836, the conclusions of which were the same, the sum sued for being £1000, as one year's rent of the lands.

I. The facts in the first case were these:—The estate of Kinnordy was purchased by Charles Lyell (the first) in 1782, and he was infeft therein by instrument of sasine in the same year. By disposition and settlement dated in 1783 he conveyed the lands to his eldest son Charles Lyell (the second), and the heirs whomsoever of his body, whom failing to the other persons therein named. Charles Lyell (the second) was infeft upon that disposition in 1796, and he was entered by the then superior by charter of confirmation dated 28th December 1802, which specially confirmed the disposition and settlement of 1783 above referred to.

Charles Lyell (the second), by trust-disposition and settlement dated 28th May 1836, on the narrative that he had resolved to execute a new settlement of his lands and estates, conveyed the subjects in question to his wife Mrs Frances Smith or Lyell in liferent for her liferent use allenarly—“And upon the death of the said Mrs Frances Lyell, or in the event of her predeceasing me, to and in favour of Charles Lyell, Thomas Lyell, Henry Lyell, Frances Lyell, Marianna Lyell, Caroline Lyell, Eleanor Lyell, Maria Lyell, and Sophia Georgiana Lyell (being the whole surviving children of the marriage between me and the said Mrs Frances Lyell), and the survivors or survivor of them in trust as trustees for the ends and purposes after mentioned (the majority of the survivors being a quorum for executing this trust), and upon the termination of this trust in the manner and at the period hereinafter expressed, then to and in favour of my heir-at-law at that time in fee.” Powers were given to his wife in regard to granting leases for terms not exceeding nineteen years, and for entering vassals.

The trust purposes were as follows:—The first had reference to the occupation of the mansion-house of Kinnordy. The second purpose was in these terms:—“With regard to the other trust-lands and estate before described and conveyed (except the said mansion-house and Mains of Kinnordy and others foresaid), I direct my said trustees, and the survivor of them, to retain and manage the same in trust so long as there shall exist either one or more of my said children, trustees foresaid themselves, or one of them, along with my heir-at-law in a different person from my last surviving child, and to divide the whole free rents or annual returns from the estate, after paying all expenses, annuities, and other deductions, into equal shares (excepting only the produce from sales of wood), two of which equal shares I direct to be paid over to my heir-at-law for the time, so long as that character is in a person or persons different from my said daughters, and in the event of my said daughters becoming my heirs-at-law, then the said two shares to be paid to my eldest surviving daughter for the time, and one equal share to each of my said other children, trustees foresaid, during their respective lives.” The third purpose was in the following terms:—“If it shall happen that the last survivor of my said children shall also be my heir-at-law for the time, then and in that event this trust shall cease and determine, or if that shall not happen, then upon the death of the last survivor of my said children this trust shall cease and determine, and upon the termination of this trust on either of these events, the whole lands and estates before described and disponed shall fall and belong to my said heir-at-law at the period of that event, heritably and irredeemably, with power to my said heir-at-law to expede services, make and grant all deeds, and adopt all proceedings for fully and absolutely vesting the whole of said lands and estates in his, her, or their person, but in no case shall it be competent to dissolve this trust sooner than on either of the events aforesaid, it being my express wish and directions that the same shall be kept up till that period, and that the person or persons possessing at that period the character of my heir-at-law, and no previous heir shall succeed absolutely to the said lands and estates.” Powers were then given to the trustees to enter vassals, and to “exercise every proper act of ownership consistent with the true intent and meaning of these presents.” There was a prohibition against granting leases in consideration of grassums or premiums, and against selling or burdening any part of the lands. The deed contained a procuratory of resignation and precept of sasine authorising infeftment of “the said Mrs Frances Smith or Lyell, my spouse, in liferent, for her liferent use as aforesaid, under the burdens, conditions, and provisions before written, and upon the death

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of the said Mrs Frances Lyell, or in the event of her predeceasing me, to the said Charles Lyell, Thomas Lyell, Henry Lyell, Frances Lyell, Marianna Lyell, Caroline Lyell, Eleanor Lyell, Maria Lyell, and Sophia Georgians Lyell, and the survivors or survivor of them, in trust, as trustees for the ends and purposes, and under the declarations, burdens, conditions, and provisions before specified (which are hereby appointed to be engrossed in the charters and infeftments to follow hereon), and upon th6 termination of this trust in the manner and at the period hereinbefore expressed, then to my heir-at-law at that time in fee.”

Charles Lyell (the second) died in 1852. In that year the trustees took infeftment in terms of the precept of sasine, and in the same year Sir Charles Lyell applied to the then superior, and obtained a precept of clare constat in his favour as the eldest son and nearest and lawful heir of provision to his father Charles Lyell (the second). It did not appear in the case whether his infeftment or that of the trustees was first in date.

Charles Lyell (the second) was predeceased by his wife.

Sir Charles Lyell died on 22d February 1875.

The pursuer pleaded—“(1) A casualty of one year's rent of the lands described in the summons having become due to the pursuer, as superior thereof, by the defender, upon the death of the said Sir Charles Lyell, the previous vassal, the pursuer is entitled to decree as concluded for.”

The defender pleaded—“(2) The infeftment of the defender being merely a burden upon the radical and proper title to the estate, and the heir being willing to enter to said radical and proper title with payment of a relief-duty, the defender should be assoilzied. (3) The defender, by the terms of her title, holding only for the heir of the investiture, and having no power of transmission to any but the said heir, the pursuer is not entitled to more than relief-duty.

The following minute was lodged—“ Graham Murray, for the said Leonard Lyell, hereby offers that the said Leonard Lyell shall enter as vassal with the pursuer in the lands described in the summons by writ of clare constat as heir whomsoever of the body of the deceased Charles Lyell, second of Kinnordy, and as such heir of provision of the late Sir Charles Lyell of Kinnordy, the last entered vassal in the said lands, under and in virtue of the disposition and deed of settlement, dated 16th April 1783, granted by Charles Lyell, first of Kinnordy, in favour of the said Charles Lyell, second of Kinnordy, and the heirs whomsoever of his body, whom failing as therein mentioned, or failing the pursuer granting said writ of clare constat, that he the said Leonard Lyell shall expede a service as heir of provision in special in the said lands of the said deceased Sir Charles Lyell under and in virtue of the said disposition and deed of settlement of 16th April 1783.”

II. The facts of the second ease were these:—The vassal last entered in the estate of Glasswell previous to the entry of Sir Charles Lyell, was his father Charles Lyell (the second), who was entered with the then superior by charter of cenfirmation and precept of clare constat in 1840.

By trust-disposition and settlement dated 28th May 1836 Charles Lyell (the second), after narrating the previous trust-disposition and settlement, conveyed his estate of Glasswell to his wife and his surviving children nominatim in trust for the purposes after specified. The primary purpose of the trust was for the sale of the whole or so much of the lands as would satisfy and pay the truster's debts, and also the provisions for his children therein specified. The truster then directed that so long as the lands or any part of them remained unsold the trustees were to retain and manage the same in trust, and apply the rents in payment of the interest due on the debts, and on the children's provisions. There was a power given to borrow money on the security of the estate. In the event of any of the lands remaining unsold after the purposes of the trust had been fulfilled, the trustees were directed to convey all such lands to the truster's wife in liferent, and in the event of her death to the trustees named in the truster's trust-disposition and settlement, and under the same conditions as therein expressed. The precept of sasine was to inf eft the parties named as trustees in trust for the ends, uses, and purposes, and with the powers, and under the conditions, provisions, and declarations before written,” &c.

Upon 9th March 1850, none of the trustees having accepted office, Christopher Kerr, town-clerk, Dundee, was appointed judicial factor under the above trust; and upon 30th June 1852 he was authorised by the Court to make up a title to the whole lands under his management as judicial factor, including, inter alia, the subjects described in the summons, in the person of the heir-at-law of the truster, and thereafter in his own person.

On 3d August 1852 Sir Charles Lyell (heir-at-law of the truster), in whose favour a precept of clare constat had been granted by the superior, executed a disposition and conveyance of, inter alia, the subjects in question in favour of the said Christopher Kerr, as judicial factor, upon which the latter took infeftment upon 3d July 1854. Upon Christopher Kerr's death, the defender George Auldjo Jamieson, was appointed judicial factor by interim decree in 1871, which was extracted and recorded, and he was thus duly infeft in the lands.

The other facts in the case appear from the statement in the first action.

The pleas were similar to those in the first action.

The Lord Ordinary ( Kinnear) on June 14th 1887, pronounced this interlocutor in the first action:—“Finds that Sir Charles Lyell, the last entered vassal, was not divested of his radical right in the lands libelled by the infeftment of the trustees under his father's trust-disposition and settlement; that the said right passed at his death into his hæreditas jacens, and may be taken up by the service of his heir: And in respect of the minute for Leonard Lyell, supersedes farther consideration of the cause for one month, and grants leave to reclaim.”

In the second action the interlocutor was the same with this difference:—And in respect it is stated that Mr Leonard Lyell is about to expede a service as heir-at-law or heir of provision to the said Sir Charles Lyell, supersedes farther I consideration of the cause for one month.

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“ Opinion.—The question in this case is, Whether the defender has been entered with the superior, by force of the Conveyancing Act of 1874, as a singular successor of the last vassal, so as to exclude the heir of the standing investiture, and to incur liability for a composition of a year's rent? and it depends for its solution on the feudal effect of a trust-disposition executed in 1836 by the father and predecessor of the last entered vassal.

The truster, Charles Lyell (the second), of Kinnordy, was infeft as immediate disponee under a trust-disposition and settlement executed by his father, Charles Lyell (the first), in 1783, and was entered with the superior by charter of confirmation, confirming the disposition and the infeftment following upon it in 1802. The disposition and settlement so confirmed is in favour of a series of heirs, varying in some respects from the legal order of succession; and the destination which it contains was undoubtedly the rule of the existing investiture, as regards succession, when the Act of 1874 came into operation. It was, however, a simple destination which Charles Lyell (the second) was at liberty to defeat; and it is said that he altered it by his trust-disposition and settlement of 1836, so that the implied entry of the trustees under that deed has effected a change in the investiture, and entitled the superior to a composition as for the entry of a singular successor. The answer is, that the trust right is a mere temporary burden, and that the infeftment of the trustees is therefore no feudal impediment to the entry of the heir.

The trust-disposition and settlement contains a conveyance to the granter's wife in liferent, and on her death to his children, who are called nominatim in trust, and upon the termination of the trust to the granter's heir-at-law at that time in fee. The trust is created for the sole purpose of making provision out of the rents of the estate for the children of the truster, and upon the death of the last child, who shall not be heir-at-law, the trust is to come to an end, and the right of the heir-at-law is to become absolute. The deed contains procuratory of resignation and precept of sasine, authorising the infeftment of the children who are specially named ‘in trust, and as trustees for the uses and purposes, and under the conditions’ specified in the deed; and also authorising infeftment at the end of the trust of the heir-at-law at that time in fee.

On the death of the truster in 1852 his eldest son, Sir Charles Lyell, completed a title by infeftment on a precept of clare constat in his favour, as the eldest son and nearest and lawful heir of provision to his father under the settlement of 1783; and in July 1852 the whole surviving children of the truster, eight in number, took infeftment as trustees, upon the precept contained in the trust-disposition and settlement of 1836. It is not stated whether the sasine of the heir or of the trustees was first in date, and it is immaterial, because in either case the feudal effect of the two infeftments will be the same. The pursuer maintains that by their infeftment upon the precept the trustees divested the truster and his heirs of the dominium utile, leaving a bare mid-superiority, which was well taken up by Sir Charles Lyell; that they continued to hold base under Sir Charles until the passing of the Act of 1874, when by the operation of the 4th section of that statute the mid-superiority was extinguished, and the trustees were entered with the pursuer as their immediate superior. If this was in truth the effect of the trustees' infeftment, it follows, upon the authority of Lamont v. Rankin, that there is now no room for the entry of Sir Charles Lyell's heir, and that the defenders must pay a composition as singular successors.

The first question therefore is, Whether the truster and his heirs have been divested? It is settled law that a mere trust infeftment does not divest the granter, but operates merely as a burden upon his title. But the pursuer says that this is not a mere trust infeftment, because the disposition and settlement was intended to alter the existing destination, and is effectual for that purpose; and the trustees are therefore holding for the heirs of the new destination, which, according to the argument, has been already enfranchised by the implied confirmation of their infeftment.

The whole case appears to me to depend upon the soundness of this proposition, and I am of opinion that it cannot be sustained. I am unable, however, to assent to the first point which the defender takes in answer to it. It is said that there is no change in the destination, because the words heir-at-law, as used in the trust-disposition and settlement, must be construed to mean heir of the investiture. But ‘heir-at-law’ is a technical term, which means, in its ordinary acceptation, the heir provisione legis, as distinguished from the heir of a particular destination. There is nothing in the deed to indicate that it was intended in any other than its technical sense, and I think it would be contrary to settled rules of construction to force upon it a meaning which it does not naturally bear merely because the title of the granter of the deed contains a destination differing from the legal order of succession.

There may have been cases where the word ‘heir,’ when used in relation to accessory rights, has been interpreted by reference to other deeds, but in the construction of a special settlement such as the present the technical meaning of words descriptive of the class of heirs who are to succeed must prevail, unless it can be controlled by other words occurring in the same deed. This was decided in the case of the Duke of Hamilton v. Douglas, M. 4369, and the decision rests upon principles that are applicable to the construction of all written instruments.

Nor does it appear to me to be very material to the present question that the characters of heir-at-law and heir of the investiture are at present united in the person of Mr Leonard Lyell. He may or may not be the heir-at-law at the time the trust comes to an end; and it is a sufficient foundation for the pursuer's argument if at the time when the trustees are said to have been entered it was possible, according to the conception of the trust, that they might be holding for an heir who should not be the heir of the investiture. Now, there appears to be only one event—but still there is an event—in which the characters of heir of the investiture and heir-at-law might be in different persons at the termination of the trust. The heir-at-law of the truster at that time must be either his last surviving child or the direct descendant of a predeceasing

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child. But by the destination of the settlement of 1783 heirs-portioners are excluded, and they are not excluded by the settlement of 1836. It follows that by the latter settlement the estate might be carried to persons who are not the heirs of the investiture, and it is of no importance to the question whether this is a probable or a possible result in the event which has actually happened.

But, whatever may be the character of the heir who shall take at the termination of the trust, the important question is, whether the full fee of the estate to which he will then have right is now vested in the trustees? I am not sure that this is exactly what is meant by the defender's proposition that the trustees are ‘holding for the heir.’ That is a very vague phrase, and the defender's counsel did not define with any precision the meaning which he attaches to it. But if it does not mean that the fee which the heir is ultimately to take is now in the last surviving trustee it has no bearing upon the question of the heir's right to enter. If it does mean this, it would appear to me to follow that the heir when his right emerges must take it through or from the trustee by conveyance or by succession; and the best way of testing the soundness of the proposition will therefore be to inquire whether it is possible for the heir to complete a title by either of these methods?

Now, it is certain that he cannot obtain a title by conveyance from the trustees, because they have no power to convey; and except in the event of the characters of heir-at-law and of last surviving child of the truster being combined in the same person, the trust is to be extinguished by the death of the last trustee before the right of the heir-at-law can be ascertained. A conveyance from the trustee, therefore, to the heir-at-law would be altogether inept and ineffectual. But then it is suggested that the trustees are infeft as the first members of a destination, and that upon the death of the last trustee the heir-at-law may make up a title by special service as heir of provision to her. I think it a sufficient answer that the infeftment of the trustees is expressly qualified as an infeftment in trust, which is to come to an end upon the death of the last trustee. It has long been settled law that where a trust expires with the last Survivor of the trustees, the feudal title cannot be taken up by his heir even for the purpose of a re-conveyance to the truster— Drummond, M. 16,206; Gillespie v. Robertson, 2 Sh. 795. But this is a much stronger case, for not only is the trustee's title to be extinguished on the death of the last survivor, but the whole purposes of the trust and all the rights created by it are to be exhausted upon the occurrence of that event. It appears to me to be altogether contrary to the most elementary principles to represent the estate in the trustees as an estate of inheritance which can pass by succession to their heirs; and it is just as impossible that it should be taken up by heirs of provision as by heirs of law. The truster's heir-at-law is not to take an absolute right in the estate until the trust is at an end. But when that event happens, he is to take in his own right as a disponee, and not by way of succession to the trustees.

But if it be clear that the trustees were infeft in trust only, and under a trust so qualified that the fee of the estate cannot pass to their heirs, it follows of necessity that their infeftment left the fee in Sir Charles Lyell, the last entered vassal. It has been settled law, ever since the case Campbell v. Edderline's Creditors ( Morr. Adjud. App., No. 11), that an infeftment in trust for special purposes does not completely divest the granter, but leaves the radical fee in him, so that on his death it may be adjudged as in hæreditate jacente, or taken up by the service of an heir in special. The rule has been applied in a great variety of cases, the most important of which are cited in the opinion of the Lord Justice-Clerk in Gilmour v. Gilmour, 11 Macph. 856; and the legal principles on which it rests are fully expounded in two very weighty judgments of Lord Moncreiff in the cases of M'Millan v. Campbell, 9 S. 551, 7 W. & S. 441; and Giles v. Lindsay, 6 D. 771. But the present is even a clearer case for the application of the rule than Campbell v. Edderline or M'Millan v. Campbell. For in these cases the trust-deed might have become the regulating instrument for the investiture of the estate, and in the present case, although a change of the investiture may be intended by the truster, the trust infeftment can never be made available for the purpose of effecting the change. The trust is to subsist only so long as shall be necessary for securing provisions out of the estate to children other than the heir-at-law; when that purpose is served it is to be extinguished ipso facto, without the necessity for any conveyance or re-conveyance; in the meantime the trustees are to have no other powers, even of management, than are indispensable for the execution of the trust; and not only have they no power of conveyance, but they are expressly prohibited ‘from taking grassums or premiums for leases, and from selling or disponing any part of the estate and from burdening it with debt.’ And all due precaution is taken to secure that the conditions and limitations upon their title shall be effectual, because by the terms of the procuratory and precept they are to be infeft ‘in trust as trustees, for the purposes, and under the conditions and provisions before specified, which are appointed to be engrossed in the charters and infeftments to follow hereon.’ The series of decisions to which I have referred leaves no room for question as to the feudal effect of an infeftment in these terms. As a trust for special and temporary purposes it left the granter undivested of the radical' right, so that his heir might be served heir in special upon his original title, or adjudication might be led against his hæreditas jacens.

It follows that the right vested in Sir Charles Lyell by his infeftment on the precept of clare constat was not, as the pursuer supposes, a bare mid-superiority, but the substantial right of property in the estate, under burden of the disposition and settlement. The fee must necessarily have been in him, because it was not in the trustees, and there was no other person in existence who could have it. But for the passing of the Act of 1874 therefore there could be no question that upon his death the fee passed into his hæreditas jacens and was open to be taken up under the same burden as it stood in him by his nephew Mr Leonard Lyell as his heir of provision. But the 4th section of the Act of 1874 makes no difference if the fee in Sir Charles was not a bare

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mid-superiority. It enters the proprietor infeft with the nearest superior whose estate of superiority in the lands would not have been defeasible at the will of such proprietor. But the trust infef tment makes no real division of the truster's estate, so as to separate the dominum utile from a mid-superiority. It leaves the entire estate in him as it stood before, or in the heir who takes it up from his hæreditas jacens, subject only to the transient burden of the trust; and no part of the estate is defeasible at the will of the trustee, whether the form by which the trust is made real is an a me or a de me holding.

It appears to be very doubtful therefore whether the Act of 1871 is applicable to the case, so as to put the trustee in the position of holding directly of the superior. But if they do hold directly of him they hold only to the extent of their right, and their infeftment is still nothing more than a burden upon the substantial fee. It is of no consequence to the rule as laid down in Campbell v. Edderline whether trustees hold of the truster or of his superior. The principle is that their infeftment in whatever form does not evacuate the infeftment of the granter, and therefore cannot exclude the infeftment of the granter's heir. This is brought out very clearly in the opinion of Lord Corehouse in Melville v. Preston, 16 S. 457. It was a question in that case whether trustees under a trust-disposition which had. been executed by Sir Robert Preston of Valleyfield, under the burden of an entail, could make up a feudal title to the lands notwithstanding that the entail had been already feudalised in the person of the institute. And upon that question Lord Corehouse observes—‘As to the feudal difficulty pleaded by the defender it is, without foundation. It is true there cannot be two co-existing and co-ordinate infeftments in fee-simple in one and the same estate; but nothing is more common than to have an infeftment in fee-simple burdened either with an entail or a trust.… These are not cases of co-ordinate and co-existing infeftments in the same fee.’ And accordingly the completion of the one title by infeftment interposes no feudal impediment to the completion of the other by infeftment also.

It is argued, however, that although the infeftment of the trustee might not exclude the heir if the deed contained nothing more than the conveyance in trust, the conveyance to the granter's heir-at-law will have a very different effect, because it necessarily operates a change in the investiture. But the change has not yet been effected, and it is very doubtful whether it could ever be effected without the intervention of the heir of the existing investiture. I assume that the beneficial interest is well given to the heir-at-law if that character shall belong to a different person from the heir of the investiture when the trust comes to an end. But taking that for granted, the question is whether the conveyance is of itself effectual as a feudal transmission of the estate. The 20th section of the Titles Act of 1868 and the 27th section of the Conveyancing Act of 1874 have no application to a disposition executed in 1836, and coming into operation by the death of the granter in 1852. The feudal effect of the deed therefore must be determined according to the law as it stood before the passing of these Acts, and by the law as then established a proprietor infeft could only infeft a disponee by the warrants contained in a de presents conveyance in favour of a person capable of taking an immediate right. A precept for the infeftment of persons who cannot be ascertained, and who may not be in existence when the deed comes into operation, was altogether inept and ineffectual. It appears to me therefore that there is only one method by which the disponee, if he has a good right at all, will be able to combine his right with the feudal title. He cannot obtain a conveyance from the trustee, because she has no power to convey; he cannot serve heir of provision to her, because she has no right that will pass into her hæreditas jacens; he cannot execute the precept in his own favour. The only means by which he can feudalise his right is by adjudication in implement directed against the heir of the investiture. But that means that he can charge the heir to enter by treating the disposition in his own favour as an obligation upon the heir. And if the heir can enter when the trust is at an end, in order to give effect to his ancestor's conveyance, it follows that the investiture has not been changed, and that he can enter now, because the fee is vacant by the death of the last vassal.

But if, contrary to the opinion I have indicated, it should be held that the precept is a good warrant for the infeftment of the disponee, that will not in the slightest degree affect the present title of the heir of the investiture as in a question with the superior. The right of the disponee will still be purely personal until he chooses to take infeftment, and if he should be content to stand on his personal title, and to leave the fee vacant for the heir of the investiture, there will be nothing in the state of the titles, or of the substantial rights of the parties, to prevent the heir from entering. It is said that the deed is confirmed, and that the superior cannot but be entitled to found upon a conveyance which the statute supposes him to have recognised, But assuming the implied confirmation to have taken effect, I cannot read the statute as importing a confirmation of anything in the title of a proprietor infeft, excepting only the infeftment and its conditions, and the rights and titles which are necessary to support it. If the deed contains two several rights, upon one of which infeftment has passed, while the other remains personal, the implied confirmation of the feudalised right can have no operation upon the personal. The infeftment of the liferenter alone under a conveyance to one in liferent and another in fee is a familiar illustration, and there can be no question that such an infeftment, either before or after the passing of the Conveyancing Act, leaves the fee remaining upon the old investiture. This was well settled under the old law, and it was held by the majority of the Judges in Hope v. Hamilton, 10 R. 1127, to be equally clear in a question under the Conveyancing Act of 1874. Lord Shand in that case proceeded upon a different ground, but I-do not understand his Lordship to have dissented from the opinion of the other Judges, or to indicate any doubt of the soundness of the distinction between an nnfeudalised right which may import a change in the destination, and the feudal operation which changes the investiture. The material point is that the superior has no concern

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with the rights which may be created by his vassal until the persons in whose favour they may be conceived are brought into direct relation with him by infeftment or a demand for infeftment of and under him. On the same principle it would appear to follow that the implied confirmation of a trust infeftment can have no operation whatever upon the unfeudalised right to the substantial fee. And therefore, if Sir Charles Lyell had been the last surviving trustee, and the character of heir-at-law and heir of the investiture had been in different persons at his death, I see no ground upon which the superior would have been entitled to plead upon the disposition to the heir-at-law as against the demand of the heir of the investiture for an entry if the heir-at-law were content for whatever reason to waive his right. The case of the Duke of Hamilton v. Guild, 10 R., would have been directly in point. But if that be so, the heir of the investiture must be equally entitled to enter to the fee left vacant by Sir Charles' death when the right of the heir-at-law has not yet been ascertained.

The cases of Hill v. Grindlay and of Lamont v. Rankine are in my opinion inapplicable. In these cases the deeds which were confirmed, actually or by implication, were deeds creating a new investiture. As Lord Curriehill points out—‘The trustees on obtaining the charter which they demanded might have used it to create the direct relation of superior and vassal between the superior and a third party, even after the death of the heir, without any further payment being made to the superior.’ In the present case the trustee can never, by the exercise of any right in her, bring any new vassal into feudal relation with the superior, the infeftment of the trustee is a mere burden which has no effect upon the investiture, and if the investiture should be changed at all by the operation of the trust-disposition and settlement it will be in virtue of a right which has not yet been feudalised. The superior may be entitled to a composition when the change takes place if the fee is then vacant. But in the meantime he must in my opinion be content with relief-duty on the entry of the heir.”

“The other case at the instance of the same superior against the judicial factor upon a trust for creditors depends upon the same considerations. There is a power of sale for payment of debts, but the same power existed in the case of Edderline, and in many of the long series of decided cases which followed it, and it is perfectly well settled that until the power is exercised the trust for creditors is still a mere burden. A more material point of distinction is that there is no conveyance of such part of the lands as may remain unsold, by which the rights of the heirs of the investiture can be affected. The trustee for creditors is to convey to the trustees under the trust-disposition and settlement, but when the purposes of this last trust have been served there is no further conveyance, and no direction or power to the trustees to convey. The heir of the investiture therefore is not divested.”

Between the date of the Lord Ordinary's judgment and the discussion in the Inner House on the reclaiming-note the Conveyancing Act of 1887 (50 and 51 Vict. cap. 69) was passed. The defender and respondent was allowed to add the following additional plea-in-law founding on this Act—“(5) In respect of the provisions of the Act 50 and 51 Vict. cap. 69, sec. 1, the defender is only liable in relief-duty.”

Section 1 is as follows—“Where by a trust-disposition and settlement, or other mortis causa writing, any heritable estate is conveyed to trustees for behoof of, or with directions to convey the same to, the heir of the testator, whether forthwith, or after the expiration of any period of time not exceeding twenty-five years, or by virtue of which the heir of the testator has the ultimate beneficial interest in such estate, the trustees under such trust-disposition and settlement, or other mortis causa writing, shall not, upon their entering, or by reason of their having prior to the date of this Act entered with the superior, by infeftment or otherwise, be liable for any other or different casualty than would have been payable by the heir if he had taken the estate by succession to the testator without the same having been conveyed to trustees; and the heir upon thereafter entering with the superior, by infeftment or otherwise, shall not be liable for any further casualty in respect of his entry, but whether the heir shall have been entered or not, another casualty shall become exigible upon his death in the same manner as if he had been duly entered with the superior.”

The pursuer reclaimed, and argued in the first case:—

(1) The Act of 1887 does not apply, as it is not retrospective— Urquhart v. Urquhart, July 14, 1853, 1 Macq. 658, Cranworth, L.C., at p. 662; Gardner v. Lucas, June 13, 1877, 15 S.L.R. 359, 4 R. 885, and March 21, 1878, 5 R. (H.L.)105, Cairns, L.C., at p. 109. When an Act affects existing interests, it will not be held to be retrospective unless it is expressly said to be so, or unless that is clearly Implied— Ker v. Marquis of Ailsa, June 12, 1854, 1 Macq. 736. But even if retrospective, the Act does not apply, because the word “heir” in section 1 must mean “heir-at-law,” whereas in the present case the person selected is not properly an heir-at-law at all. (2) The trust-disposition and settlement of 1836 evacuated the existing investiture. This was clearly the intention of the truster. The destination is the same as if the estate had been destined to a third party, and a composition is therefore due. The case of Lamont v. Rankin's Trustees, February 28, 1879, 6 R. 739, rules (he present— Murray, &c. v. Gregory, &c., January 21, 1887, 14 R. 378; Qrindlay's Trustees v. Hill, January 18, 1810, F.C.; Terrier's Trustees v. Bayley, May 26, 1877, 4 R. 738; Rossmore's Trustees v. Brownlie, &c., November 23, 1877, 5 R. 201; Sturrock v. Carruthers' Trustees, May 21, 1880, 7 R. 799. Grindlay's Trustees v. Hill settled the law before the Act of 1874, and Lamont v. Rankin's Trustees settled it in view of that Act—that trust disponees must enter as singular successors. If in the deed in the present case there had been a power to convey to the ultimate disponee, or a destination to the heir of the surviving trustee, the case admittedly would have been ruled by Lamont. There was here a new settlement of the estate which divested the granter. If Mr Leonard Lyell predeceases the defender leaving daughters, the question will arise between the eldest daughter and her sisters which deed is to prevail. The following

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cases quoted by the Lord Ordinary, viz., Campbell v. Edderline's Creditors, MMillan v. Campbell, and dies v. Lindsay, are not in the same category as the present. The purposes of the deeds in these cases were purely of a temporary nature, whereas in the present case the purpose was to completely divest the granter. Gilmour v. Gilmour, also quoted by the Lord Ordinary, is an authority for the proposition that in the case of a mortis causa trust for third parties, differing from an inter vivos trust, there is an absolute divestiture of the granter—also Macdouall and Selkrig v. Russell, February 5, 1824, 2 Sh. (old ed.) 682, (new ed.) 574. The trust is only a burden when the beneficial interest is in the truster. The mere fact that the trustees have no machinery given them for passing the estate makes no difference. There was nothing left for theheir to take up after the infeftment of thetrustees. The fee is in the trustees, to hold for the person ultimately entitled to the estate, as in Grindlay's Trustees and Lamont. It is important that this trust is for the behoof of all concerned, as well as for the liferentrix— Ferguson v. Ferguson, March 19, 1875, 2 R. 627; Cumstie v. Cumstie's Trustees, June 30, 1876, 3 R. 921. In the whole series of decisions there is no case where the clear intention of a truster to constitute a fee has not been given effect to merely because a liferent has been created, and the fee was not intended to take effect till after the termination of the liferent— Douglas v. Thomson, January 7, 1870, 8 Macph. 374. The truster conferred larger powers than those necessary for mere administration. There was here a fiduciary fee in the trustees— Mein v. Taylors and Others, February 23, 1830, 4 W. & Sh. 24; Ramsay v. Beveridge, March 3,1854, 16 D. 764, Lord Wood, 779. It has never been held that if a change in the investiture is possible the superior can be denied his composition. The same argument urged against the pursuer on this point would have been equally applicable in Rankin. (3) The difficulty of the completion of the title of the ultimate fiar is at once got over when the fiduciary fee is admitted. The only difference between the present case and Grindlay's Trustees is the want of machinery provided in the deed for the trustees conveying to the ultimate fiar. But he could make up his title by adjudication and implement against the heir of the last trustee—Bell's Prin. sec. 2001; Drummond v. Mackenzie, 1758, M. 16,206, which was followed in Gordon's Trustees v. Harper, December 4, 1821, 1 S. 185, also in 1 Ross' L.O. (Land Rights) 199; Gillespie v. Robertson, March 11, 1824, 2 S. 795. There is therefore no necessity to go back to the hæreditas jacens of the truster. Now, the same thing can be done by the 43d section of the 1874 Act or the 14th section of the Trusts Act of 1867. But even assuming the view of the Lord Ordinary to be right on this point, the omission by the granter of the deed to supply the machinery requisite to pass the property to the ultimate fiar cannot alter the character of the deed. The substance of a deed and not the mere form must be looked at— Mackintosh v. Mackintosh, March 5, 1886, 13 R. 692. The trustees are entered, and the question comes to be, if, under the old law, the trustees had gone to the superior and asked for a charter of confirmation, could he have refused to give it? This must be answered in the affirmative, on the ground that the substance of the deed was to create a new investiture.

The pursuer argued in the second case:—

It is entirely left to the discretion of the trustees to sell when they please. There can be no question that the purpose and effect of the deed in the case was to divest the truster at anyrate of land which the trustees might sell. The difference between this case and the other is that the direction to the trustees to sell is the main purpose of the trust. The superior is entitled to say that the defender holds the estate for the purpose of selling it, and that being so, the superior is entitled to his composition on the authority of Lamont v. Rankin's Trustees.

The defender replied in the first case:—

(1) The Act of 1887, sec. 1, applies in the present case. Admittedly in dubio provisions in an Act will not be held to be retrospective—Maxwell on Statutes (2d ed.)266. But the 1887 Act expressly bears to deal with rights which have vested in the superior by the implied entry under the 1874 Act. It therefore expressly bears to be retrospective. The question is as to the meaning of the word “heir” in the Act. Trustees may be said to hold for an heir-at-law, although he only possesses that character at the termination of the trust. (2) The trust-disposition and settlement of 1836 merely operated as a temporary burden on the fee, and did not evacuate the existing investiture. The dispositive and executive clauses clearly recognise a separate conveyance to the trustees from that to the heir-at-law, just as if there had been two deeds. The fallacy of the argument on the other side is that they have treated the infeftment as that of the heir-at-law, whereas it is a burdening and not an evacuating infeftment. Grindlay's Trustees v. Hill is distinguishable from the present case in four points. In that case there was a power of sale, while here there is none; also, the trustees were holding there for others than the heir. There was also a direction to convey, and lastly what the trustees were asking was an assignable charter. These distinctions appear from Lord Curriehill's note in Lamont v. Rankin's Trustees, and in Sturrock v. Carruthers, both supra cit.— cf. Sess. Papers, 1880, vol. 681, No. 136. The trust in the present case is very similar to the one in Melville v. Preston, cited by the Lord Ordinary, being merely for a temporary purpose. Melville v. Preston displaces the distinction sought to be drawn between an inter vivos and a mortis causa trust. The real question is, whether the truster divested himself of the fee? There could not be any divestiture unless there was a public infeftment of the disponee. The argument on the other side was that it was only necessary to create a fiduciary fee. But the right of the disponee must be feudalised also— Duke of Hamilton v. Guild and Duke of Hamilton v. Hope, cited by the Lord Ordinary. The trustees' right is wholly irrespective of that of the heir. The trustees' infeftment is limited to the purposes of the trust. There is no infeftment of the trustees on behalf of the heir as in the case of Barstow v. Steuart, &c., February 1858, 20 D. 612. The question whether there is a fiduciary fee is therefore quite irrelevant. The Court always takes the view that the presumption

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is against divestiture where the trust is for a temporary purpose, and that it is of this nature appears from the terms of the infeftment itself. This case is therefore a fortiori of Campbell v. Edderline's Creditors and similar cases. Moreover, the disposition to the heir is bad, because there is no authority for holding that a good disposition can be granted to a person not presently existing. But even assuming it is good, there is no infeftment of the trustees in the fee. (3) As to the completion of the heir's title. The pursuer has to admit that there is a direct conveyance to the heir, and precept in his favour. The Lord Ordinary is perhaps right in holding that the precept in favour of the heir is bad, although the authorities are not at one on this matter—Menzies' Lectures on Conveyancing (3d ed.), p. 561; Bell's Prin. sec. 876; Ross' Leading Cases, ii. (Land Bights), p. 18. If the precept is to the heir at a certain time, he will not get a good sasine unless he satisfies the notary that he is the heir-at-law. The precept here was really unexecuted, and the heir has not been infeft at all. All that has been confirmed by the 1874 Act is the sasine of the trustees. (1) If the pursuer is right on the main question, another arises. Does the heir in the deed mean somebody different from the heir of the investiture? It is admitted that Mr Leonard Lyell is at present both heir-at-law under the deed and also the heir of investiture. The only possible event in which he would not hold both characters would be his predeceasing the defender. The superior would only therefore be entitled to relief-duty in the meantime.

The defender in the second case maintained that it was not distinguishable from the first case.

At advising—

In the first action:—