Scottish Court of Session Decisions

The late Robert Ainslie of Elvingston, Haddingtonshire, died on 3rd May 1888. At the time of his death he was in possession of the landed estates of Elvingston, Redcoll, Huntingdon, Morham Mains, and others, in Haddingtonshire, having a rental of about £3700 per annum. He also left a free move-able estate amounting to upwards of £123,000. He left a trust-disposition and settlement dated 8th October 1885, and a codicil dated 13th April 1888. Mr Ainslie was survived by his wife Mrs Mary Ainslie, and by five daughters—Mrs Martha Ainslie sometime Burt now Campbell, eldest daughter, Mrs Mary Reid Ainslie or Anderson (the petitioner), Mrs Jessie Ainslie or Wright, Miss Margaret Scott Ainslie, and Mrs Elizabeth Ann Ainslie or Sewell. His only son Colonel Ainslie predeceased him.

By his settlement he disponed his whole estate, heritable and moveable, to trustees, and directed them (2) to deliver to his widow, as her absolute property, the whole household furniture and articles belonging to the establishment at Elvingston, declaring that if she did not test on them they should be delivered to his daughter Margaret Scott Ainslie for her lifetime, and upon the death of the survivor of them that they should be delivered to the “institute or substitute heir who may then be in possession or entitled to have possession of my lands and estate of Elvingston and others in virtue of the deed of entail thereof directed to be made by my trustees as after mentioned.” The testator provided as follows:—“ Fourth, That my trustees may make up and complete omni habili modo in their persons as trustees foresaid proper feudal titles to my said lands and estate of Elvingston, and also to the whole other lands and heritages presently belonging to me, or which may belong to me at the period of my death, and shall hold such of the lands and heritages presently belonging to me as may also belong to me at the period of my death in trust for behoof of the said Mary Ainslie, my wife, and the said Margaret Scott Ainslie, my daughter, and the survivor of them, in liferent for their and her liferent use allenarly, and shall permit and allow my said wife and daughter, and the survivor of them, to occupy and possess the mansion-house of Elvingston, together with the offices, garden, lodges, avenues, and such other portions of my lands and estate of Elvingston, or other lands and heritages presently belonging to me, and as may also belong to me at the period of my death, as my said wife and daughter and the survivor of them may wish to retain in their natural possession, provided always that in the event of the marriage of the said Margaret Scott Ainslie before the death of my said wife, the said Margaret Scott Ainslie shall, during the lifetime of my said wife, amit, forfeit, and lose all right to occupy and possess jointly with my said wife the said mansion-house of Elvingston, with the offices, gardens, lodges, avenues, and such portion of my lands and estate of Elvingston, or other lands and heritages, as were previously in the possession of my said wife and herself, and shall receive no allowance of any kind in respect thereof; and my trustees shall make payment to my said wife and daughter, and the survivor of them, of the whole free rents, profits, and yearly proceeds of or arising from the whole remaining lands and estate of Elvingston, and such of the other lands and heritages presently belonging to me, as may also belong to me at the period of my death, and not in their or her natural possession, but subject to the burden of the annuities mentioned in the eighth clause or purpose hereof, providing hereby that upon the death of my said wife, or upon my own death should I survive her, the said Margaret Scott Ainslie and her husband, if she be then married, or immediately upon his marriage to her, shall be obliged to retain or to assume, as the case may require, and constantly thereafter during the lifetime of the said Margaret Scott Ainslie to use and bear the surname and designation of ‘Ainslie of Elvingston. … And in regard to any lands and heritages which I may acquire by purchase or otherwise after the date of these presents, I hereby provide that the free rents, profits, or yearly proceeds of or arising from such lands and heritages which I may hereafter acquire, shall be paid to the same parties, and shall be dealt with in the same manner in every respect as the free balance of the annual income arising from the free residue and remainder of my moveable or personal estate and effects hereinafter mentioned in the ninth clause or purpose hereof. Fifth, That upon the death of the last survivor of the said Mary Ainslie, my wife, and Margaret Scott Ainslie, my daughter, or as soon thereafter as may be convenient, my trustees may divest themselves of the lands and estate of Elvingston, and also of the whole other lands and heritages presently belonging to me, or which may belong to me at the period of my death, by making, granting, and subscribing a deed of strict entail, agreeably to the laws of Scotland, of the whole of the said lands and heritages to and in favour of the heirs of the body of the said Margaret Scott Ainslie, whom failing, to and in favour of Mary Reid Ainslie or Anderson, my second daughter, wife of the said John Richard Anderson, and the heirs of her body; whom failing, to and in favour of Jessie Ainslie or Wright, my third daughter, wife of the said George Wright, and the heirs of her body; whom failing, to and in favour of Elizabeth Ann Ainslie or Sewell, my youngest daughter, wife of Arthur James Sewell, late of the Indian Service, and the heirs of her body; whom failing, to and in favour of Martha Ainslie, sometime

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Burt, now Campbell, my eldest daughter, sometime wife, thereafter widow, of the deceased Benjamin Burt, Esquire, Doctor of Medicine, formerly residing in Edinburgh, now wife of Major Colin Campbell, residing in Edinburgh, and the heirs of her body; whom failing, to and in favour of the said David Ainslie, my brother, and the heirs of his body; whom failing, to and in favour of the said William Bernard Ainslie, my cousin, and the heirs of his body; whom failing, to and in favour of the said Alexander Carnegie, my cousin, and the heirsof his body; whom failing, to and in favour of Archibald Ainslie, tenant in Dodridge, and the heirs of his body; whomall failing, to my ownnearest heirs and assignees whomsoever, the eldest heir-female and the descendants of her body excluding heirs-portioners and succeeding without division throughout the whole course of succession above prescribed. …. Ninth, That my trustees may hold and stand possessed of the whole free residue and remainder of my whole moveable orpersonal estate and effects, and may, out of the annual income arising therefrom, make payment of a free yearly annuity of £500 sterling to “Mrs Campbell and Mrs Sewell, and the balance of the income to Mrs Anderson and Mrs Wright equally during life, with power to bequeath their liferents to their husbands and sisters.

The eleventh purpose directed—“That my trustees may purchase, as opportunity offers, such lands and other heritages as nearly contiguous to my lands and heritages in the parishes of Gladsmuir and Haddington as my trustees shall consider eligible as an addition or additions thereto, and for that purpose my trustees may realise and convert into money the whole or any portion of the free residue and remainder of my moveable or personal estate and effects.”

The twelfth purpose was in these words—“On the residue of my trust-estate being realised and applied in the purchase of lands and other heritages as aforesaid, that my trustees may, and I hereby direct and appoint them to convey and make over the whole lands and other heritages then vested in them by a valid and effectual deed of strict entail to and in favour of the institute or heir of entail then in possession, or who would then have been entitled in virtue of the deed of entail to be executed by my trustees under the fifth clause or purpose hereof to the possession of the lands and estate of Elvingston, and the whole other lands and heritages presently belonging to me, or which may belong to me at the period of my death, whom failing, the substitute heirs of entail called or entitled to succeed to him or her therein, and with and under the whole conditions, prohibitions, and other clauses contained in the entail of my said lands and estate of Elvingston and other heritages hereinbefore directed to be executed, subject to such alterations and omissions as my trustees may in the then existing circumstances deem necessary or expedient, and which subject as aforesaid, and in so far as the same may be subsisting for the time, shall be verbatim inserted in the deed of entail to be executed by my trustees, conveying and making over the lands and other heritages in terms of this clause or purpose.”

By codicil dated 13th April 1888 the testator provided that in place of the deed of strict entail being made to and in favour of, inter alios, Elizabeth Ann Ainslie or Sewell, and the heirs of her body, the same should be made to and in favour of, inter alios, the said Mrs Sewell, and the heirs of her body that might be born after the date of the execution of this codicil, the heir of her body born before the date of the execution of this codicil being hereby expressly excluded either as the institute or as a substitute heir of entail; and further, in the event of the present child of Mrs Sewell surviving her mother the testator made certain provision for her.

At the testator's death none of his daughters—Mrs Anderson, Mrs Campbell, and Mrs Wright—had issue.

Upon 9th January 1889 Mrs Anderson, with consent of her husband Major-General Anderson, C.B., presented a petition under the Entail Acts praying for authority to the trustees to convey to her in fee-simple, and for her absolute use, the lands of Elvingston and others, and to pay her in fee-simple the whole residue.

The trustees had not purchased lands as permitted by the eleventh purpose of the deed.

She averred, inter alia—“The said Miss Margaret Scott Ainslie was born on 14th May 1832, and is unmarried. There can thus never be heirs of the body of the said Miss Margaret Scott Ainslie, and the petitioner is therefore the person who, if the direction contained in the said trust-disposition and deed of settlement had been carried into effect, would be the institute of entail in possession of the said estates of Elvingston, Huntingdon, Redcoll, Morham Mains, and others, subject to the respective liferents of her mother, the said Mrs Mary Ainslie, and her sister, the said Mrs Margaret Scott Ainslie, and might, by virtue of the Entail Acts or some of them, after providing for the legacies and annuities bequeathed as aforesaid, acquire to herself said landed estates, and the residue of the personal estate of the said Robert Ainslie, in fee-simple by executing and recording an instrument of disentail in terms of the foresaid Act. That the petitioner was born on the 19th day of January 1827, is married to the said Major-General John Richard Anderson, but has no children, and that the heirs whose consents must be given or be dispensed with to the present application” were Mrs Wright, Mrs Sewell, and Mrs Campbell, “being the three nearest heirs who at the date of presenting this petition are for the time entitled to succeed to the said entailed estate in their order successively, as above mentioned, immediately after the petitioner, being the persons who, if the said direction to entail contained in the fifth purpose of the said trust-disposition and deed of settlement had been carried out, and the lands directed to be purchased and entailed in terms of the last purpose thereof had been so purchased

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and entailed, would be at the date of presenting this petition for the time entitled to succeed to such entailed estate in their order successively, as above mentioned, immediately after the petitioner. That the said Mrs Wright, Mrs Sewell, and Mrs Campbell are all of fullage, and not subject to any legal incapacity other than that arising from their respective marriages… . That the said Mrs Mary Ainslie and Miss Margaret Scott Ainslie, who liferent the landed estates of Elvingston and others as aforesaid, acquiesce in the present application, and are prepared to renounce their respective liferents and give their formal consents to the present application on being satisfied that compensation for their respective interests in said landed estate has been sufficiently provided for by the petitioner.”

The Entail Amendment Act 1848 (11 and 12 Vict. c. 36), sec.27, enacted—“Thatwhere 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 this 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.” And by section 28—“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 Entail Amendment Act 1875 (38 and 39 Vict. c. 61), enacted, sec. 3—“That the term ‘entailed estate’ shall include all heritages which by the law of Scotland may be made the subject of entail, and also all lands or other heritages held in trust for the purpose of being entailed, and all money or other property, real or personal, invested in trust for the purpose of purchasing land to be entailed, and also all money consigned in respect of the taking of any land forming part of any entailed estate.”

The Entail (Scotland) Act 1882 (45 and 46 Vict. c. 53), enacted, sec. 3—“It shall be lawful for an heir of entail in possession of an entailed estate held under an entail dated on or after the 1st day of August 1848 to disentail the estate and acquire it in fee-simple by applying to the Court in the manner provided by the Entail Acts if he shall be the only heir of entail in existence, or if he shall obtain the like consents as are required by the 3rd section of the Entail Amendment Act 1848 in the case of entails dated prior to the said date.”

The petitioner founded on these provisions.

Service was made upon the trustees, and on Mrs Wright, Mrs Sewell, and Mrs Campbell, and the inducioe expired without answers.

The Lord Ordinary on the Bills ( Wellwood) remitted the case to the Hon. J. W. Moncreiff, W.S., to report whether the proceedings were regular and in conformity with the statute and relative Acts of Sederunt, and whether the prayer should be granted.

The reporter in an interim report raised questions (1) as to the petitioner's title to the claim made, and (2) as to the applicability of the statutes cited.

Upon 23rd March 1889 the Lord Ordinary pronounced this interlocutor:—“Appoints the petition to be served on David Ainslie of Costerton, residing at Costerton House, Blackshiels, Midlothian; Alexander Carnegie of Redhall, in the county of Kincardine, residing at Forebank House, Brechin; Archibald Ainslie, farmer, Temple Hall, East Lothian, eldest son of the late Archibald Ainslie, tenant in Dodridge, East Lothian; and also on Jane Ainslie, Archibald White Ainslie, and Florence Muriel Ainslie, children of the said Archibald Ainslie, farmer, Temple Hall, and the said Archibald Ainslie as their curator, and ordains them to lodge answers thereto, if so advised, by the second box-day in the present vacation — 24th April 1889: Meantime supersedes consideration of the petition.

“ Note.—This petition raises questions of difficulty and importance, and the property involved is of considerable value. Although the petition bears to be presented in virtue of the Entail Statutes, the first question to be decided is, whether the time has arrived at which, under the trust-disposition and settlement of the late Robert Ainslie of Elvingston, his trustees are bound or entitled either to execute the deed of entail therein directed to be made, or to convey and make over the lands directed to be entailed to the person entitled to acquire them in fee-simple. There is thus involved the question whether the petitioner is in titulo to demand an immediate conveyance of the estate.

Now, the proper contradictors in such a question would have been the trustees under the trust-disposition and settlement, but they have not thought fit to oppose the prayer of the petition. It is true that the three next heirs entitled to succeed under the destination in the trust-deed after the petitioner are called as respondents, and if this had simply been a petition presented under the Entail Statutes, it would not have been necessary to have called remoter substitutes. But as an important question of vesting is involved, in which remote substitutes are interested, and as their interests are not otherwise represented, I think it is essential that they should have an opportunity of appearing and being heard if they

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think fit. With this view I obtained from the petitioner's agents a list of the surviving substitutes named in the deed other than those already called as respondents, and of the heirs of the body of Archibald Ainslie, tenant in Dodridge, who died leaving issue.

I have ordered the petition to be served upon the two surviving substitutes not called as respondents, viz., David Ainslie and Alexander Carnegie, and on the eldest son of Archibald Ainslie and his three children. William Barnard Ainslie, the remaining substitute, predeceased the testator, without issue.”

Mr David Ainslie lodged no answers.

Archibald Ainslie and his children lodged answers. They admitted the statements of fact in the petition. But they further stated—“Mrs Mary Ainslie (the testator's widow) and Margaret Scott Ainslie are both still in life. It is not admitted that there can never be heirs of the body of Margaret Scott Ainslie. The arrangement made by the petitioner with the said Mary Ainslie and Margaret Scott Ainslie as to renunciation by them of their respective rights of liferent of the truster's lands of Elvingston and others are not known to the respondents. The respondents submitthat, whether such arrangement be made or not, the petitioner is not in the position of heir in possession, and is not and will not be entitled to make the present application unless she survive both these persons. By the said trust-disposition and settlement no right is expressed in favour of the petitioner except a direction to the trustees, in the event of there being no heirs of the body of Margaret Scott Ainslie, to divest themselves of the said lands on the occurrence of the decease of the longest liver of said two liferentrices by a deed of entail in favour of her and the heirs of her body, and failing her of the other persons named in said fifth purpose. The trustees are directed to hold the said lands and estate, and they are not bound or entitled to divest themselves thereof until that event. On the occurrence of that event, the entail may fall to be made upon one of the other persons called in the fifth purpose of the trust. The petitioner's three sisters, who are called in the petition as the three heirs next entitled to succeed, may also predecease the occurrence of said event. The said liferentrices cannot by renouncing their liferents injuriously affect the interest of the persons called under said destination subsequently to the daughters of the truster, and thereby defeat the intention of the truster. The respondents submit that the petitioner is not entitled to make the present application; separatim, that it is premature; and that, in any event, the petitioner is not entitled to have the prayer of the petition granted without satisfying and securing the interests of the respondents.”

Mr Carnegie of Redhall also lodged answers to the petition, and objected to the prayer being granted on the same grounds.

Mrs Ainslie and Margaret Ainslie lodged a minute of consent to the petition, and agreed when called on to grant formal renunciation of their liferent rights on receiving from the petitioner compensation or security for compensation of their interest.

Upon 20th July 1889 the Lord Ordinary ( Kyllachy) pronounced this interlocutor:—“Finds that the petitioner is entitled, upon production of the requisite consents and renunciations of the liferentrices, in terms of the minute, to have the landed estates of Elvingston and others, and also the whole residue of the personal estate of the late Robert Ainslie of Elvingston (but subject to and under burden of all debts and annuities secured upon or for which the said estates, heritable and moveable, may be liable) conveyed to her in fee-simple as craved in the petition; and of new remits to the Hon. James W. Moncreiff, W.S., to inquire into the circumstances set forth in the petition, whether the proceedings have been regular and proper, and in conformity with the provisions of the statutes and relative Acts of Sederunt, and to report.

“ Opinion.—This is a petition by Mrs Major-General Anderson and her husband for authority to disentail (1) the lands of Elvingston, which belonged to Mrs Anderson's father the late Mr Ainslie, and are now held by his trustees for the purpose of being ultimately entailed; and (2) the residue of Mr Ainslie, which is also held by his trustees for the purpose of being invested in land to be entailed with the lands of Elvingston on the same series of heirs.

It is not disputed that if upon the just construction of Mr Ainslie's trust-disposition and settlement his trustees are now bound or entitled to execute the entail of the lands of Elvingston and to buy other lands with the residue, the petitioner Mrs Anderson is the institute of entail in whose favour the entail falls to be executed. Neither (on the same assumption) is it disputed that as such institute she is entitled to present the present petition to have the estate disentailed with the consents which she is in a position to procure.

The question, however, is, whether the direction to entail—in the events which have happened — has become operative either as regards the lands or as regards the residue, so as to entitle the petitioner to invoke the provisions of the 27th and 28th sections of the Rutherfurd Act, and the relative provisions of the subsequent Entail Statutes.

“The negative is maintained by the respondents, who are certain of the substitute heirs of entail, and to whom intimation of the petition was made by order of my predecessor (Lord Wellwood) on considering the report by the man of business to whom the petition was in the usual course remitted. The respondents maintain that the time has not yet come for the execution of either entail, and that therefore the disentailing provisions of the Entail Acts are inapplicable.

The question at issue is thus really a question not of entail, but of trust law, arising and depending upon the construction of Mr Ainslie's trust-settlement. That settlement is somewhat obscure, and contains provisions which are difficult if

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not impossible to reconcile, but its general scheme may be taken to be as follows:—

Mr Ainislie died on 3rd May 1888, and his settlement and relative codicil were executed on 8th October 1885 and 13th April 1888. He possessed at the time of his death the lands of Elvingston, in the county of Haddington, yielding a rental of about £3700 per annum. He also left free moveable estate of the value of about £123,000. He left a widow and one unmarried daughter, Miss Margaret Scott Ainslie, who is now in her fifty-eighth year, and also four married daughters, of whom the petitioner Mrs Anderson is one. In that state of his family (1) he directed his trustees to make up titles to his landed estate of Elvingston, and also to any lands which he might purchase prior to his death (he in point of fact purchased none), and to hold the lands of Elvingston for the liferent use of his widow and unmarried daughter and the survivor of them, the income from any other lands purchased by him prior to his death to be applied in the same manner as the income of the residue of his estate.

(2) He next directed that on the death of the last survivor of his wife and unmarried daughter his trustees should execute a strict entail of the lands of Elvingston, and also of any other lands to be purchased prior to his death, in favour of the heirs of the body of the said Margaret Scott Ainslie (the unmarried daughter), whom failing to and in favour of Mrs Anderson, the petitioner, and the heirs of her body, whom failing to his other daughters and the heirs of their bodies, whom failing to certain remoter relations, and, inter alios, the present respondents.

(3) He next directed his trustees to hold the residue of his estate substantially for the liferent use of his married daughters, but in certain different proportions, and with certain provisions in favour of their husbands, unnecessary to specify.

(4) He further directed that notwithstanding the above liferent rights, the residue of his estate should be applied ‘as opportunity offered,’ and ‘at such time or times, and from time to time, as my trustees shall consider proper,’ in the purchase of lands as nearly as may be contiguous to the estate of Elvingston, ‘it being declared that notwithstanding any such purchase or purchases the proportionate share or shares payable to any beneficiaries in my trust-estate shall not be diminished.’

(5) And lastly, by the last or twelfth purpose he directed as follows:—‘On the residue of my trust-estate being realised and applied in the purchase of lands and other heritages as aforesaid, that my trustees may, and I hereby direct and appoint them to convey and make over the whole lands and other heritages then vested in them by a valid and effectual entail to and in favour of the institute or heir of entail then in possession, or who would then have been entitled, in virtue of the deed of entail to be executed by my trustees under the fifth purpose hereof, to the possession of the lands and estate of Elvingston, and the whole other lands and heritages presently belonging or which may belong to me at the time of my death, whom failing to the substitute heirs therein called to succeed,’ &c.

The deed contains various minor provisions, but the above are those which most directly bear on the present question.

In these circumstances the petitioner maintains (1) that so soon as the residue is applied in the purchase of lands, the trustees fall to entail the whole lands vested in them, including the estate of Elvingston, and that notwithstanding the previous direction that the said lands of Elvingston (along with any other lands to be purchased by the truster during his life) should be entailed on the death of the last survivor of Mrs Ainslie and Miss Margaret Scott Ainslie; (2) that in any view the residue may be at once applied in the purchase of lands to be at once entailed; (3) that assuming that the lands of Elvingston are entailable only on the death of the life-rentrices, the postponement of the entail thereof was merely for the protection of the liferents, and that as the liferentrices have agreed to renounce these liferents, and to consent to the immediate execution of the entail, their liferents are to be held as having expired to the same effect as if they had both died; (4) that any difficulty which might have arisen from the fact that the first institutes of entail are the heirs of the body of Miss Margaret Ainslie is obviated by the fact that Miss Margaret is now over fifty-seven years of age, and that the possibility of her having children is practically excluded. These are the four points the petitioner maintains.

The respondents dispute each of these contentions. They maintain that the direction to entail Elvingston on the death of the last survivor of the liferentrices must be held to override the general direction in the eleventh purpose with respect to all lands and other heritages vested in the trustees, and they point out that on the contrary construction the deed contains no provision for the subsistence of the trust to the effect even of protecting the liferents of Mrs Ainslie and Miss Margaret. They further maintain that the renunciation of the liferents does not here operate as equivalent to the death of the liferentrices, inasmuch as the postponement of the entail to the death of the last surviving liferentrix must be held to have been, partly at least, for the protection of the various conditional institutes under the entail. They further if I rightly understand their argument—maintain that even as regards the residue the direction to entail is so expressed as to apply only in the event of the time having arrived for the entail of Elvingston—that is to say, only in the event of Mrs Ainslie and Miss Margaret having predeceased the complete investment of the residue.

I have found the questions thus raised attended with difficulty, but after repeated consideration I have come to be of opinion that the petitioner is right. I am unable to get over the express words of the last or twelfth purpose, by which the trustees are directed so soon as their purchases are complete

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to entail the whole lands then vested in them. That is what is expressed, and it plainly, as it seems to me, directs an entail of everything, Elvingston included. Nor is such an entail inconsistent with the subsistence of the liferents over Elvingston any more than with the liferents constituted over the residue. No doubt in the latter case there is an express reservation of the liferents, while in the former there is no express reservation, and that no doubt creates a difficulty. But the difficulty is after all not greater than that which in any case arises as between the certainly inconsistent language of the fifth and last purposes. I am moreover, I confess, moved to give literal effect to the words of the last purpose by this consideration, that the truster plainly intended that his whole lands purchased and to be purchased should be united in one estate, and conveyed, if not to the same institute, at least to the same series of heirs, whereas if the lands purchased by the residue were entailed at once, and the lands of Elvingston were not entailed until the death of the last survivor of the liferentrices, there would be no certainty that the two estates should not be separated and pass (e.g., if Miss Margaret had children born after the entail of the residue) to a different series of heirs. It is, moreover, to be noticed that the truster could have had no reason for postponing the entail of any lands to be purchased by himself beyond the entail of lands to be purchased by his trustees. These former lands were not to be liferented by the liferentrices of Elvingston, but were to be treated in all respects as part of the residue, and yet on the respondent's construction they could not have been entailed any more than the lands of Elvingston until a date—it might be years—after the whole residue had been invested in lands, and these lands had been entailed as provided in the last purpose.

I therefore read the fifth purpose in connection with the last, and as if it (the fifth purpose) had been in effect thus—‘I direct the lands of Elvingston to be entailed on the death of the survivor of the liferentrices thereof, but subject always to the direction contained in the last purpose with respect to the entail of my whole estate, so soon as my whole residue is invested in land.’ This is perhaps a strong implication, but it appears to me to be a necessary one, at least if the two parts of the deed are to be reconciled.

If the above be sound, it is unnecessary to consider the other grounds on which the petitioner relies. I may say, however, that am with the petitioner in her contention that Miss Margaret Ainslie may now be taken as past the age of child-bearing. I agree on this point with the opinions (cited at the debate) of the late Lord Curriehill in Gibson v. Home, March 18, 1881 (not reported), and of Lord M'Laren in Barron v. Dewar, 24 S.L.R. 735. I may also refer to the judgment of the Second Division of the Court in the case of Urquhart v. Urquhart's Trustees, November 22, 1886, 14 R. 112, and to the English case in re Weddon's Trust, 11 Eq. 408, and Croxton, 9 Ch. Div. 388.

I am also—though with hesitation—with the petitioner on her remaining point, viz., that assuming that the entail of Elvingston is directed to be made only on the death of the last surviving liferentrix, the renunciation of the two liferents is equivalent to the death of the two ladies. I am on the whole unable to distinguish this case from the case of Annandale v. M'Niven, 9 D. 1201, at all events as interpreted in the opinions of the Second Division of the Court in the recent case of Latta v. Muirhead, 15 R. 254, and I do not feel at liberty to consider whether or not the reasoning in these cases is in accordance with principle.

I therefore give judgment generally in favour of the petitioner, and shall pronounce an interlocutor finding that the procedure has been regular and proper, and that the petitioner is entitled upon production of the requisite consents and renunciations of the liferentrices in terms of the minute to have the estate of Elvingston and also the whole residue conveyed to her in fee-simple, and remitting to the reporter to see the necessary deeds executed, and to report.”

Archibald Ainslie and others reclaimed, and argued—The first question was whether the petitioner was in titulo to present the petition. If the trust-deed gave her no title she could not found on sec. 27 of the Rutherfurd Act ( supra), which only gave a title to the person who would be the heir in possession “if the lands had been entailed in terms of the trust,” while sec. 28 only fixed an artificial date in order to give effect to the disentailing clauses of the Rutherfurd Act where these applied— Black v. Auld, November 5, 1873, 1 R. 203, But the Act left untouched the question of title, and was inapplicable where there was none— Picken's Trustees, February 24, 1886, 13 R. 603. On this first question the petitioner had no direct conveyance or gift under the deed. The lands were conveyed to trustees, who were directed to make up titles to and hold them till the death of the survivor mentioned, and then to execute an entail, under which the petitioner (if she survived, and failing nearer heirs) would be institute. But till these conditions were purified the petitioner had no vested right — Bayne's Trustees v. Clark, November 26, 1880, 8 R. 142. To avoid this difficulty the Lord Ordinary had read the provisions of the twelfth purpose as to residue as controlling the fifth. Further, his Lordship had regarded the last clause as implying a direction “so soon as their purchases are complete to entail the whole lands then vested in them.” Such interpretations would exclude the liferenters from the deed. The fifth purpose should receive its natural meaning. To discover the heir “in possession of Elvingston, or who would have been entitled under the fifth purpose to Elvingston,” the words “would then have been entitled,” must be read “if the right had vested, but there had been delay in making the entail.” The cases like Preston Bruce founded on by the petitioner did not apply, for in them the petitioner had a vested right— cf. Forbes v. Burness, June 29, 1888, 15 R. 797. The trust involved subsistence over a long period, and

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a final entail in favour of the person ultimately entitled. The mere element of age supplied no presumption that a child could not be born of the testator's daughter— Menzies v. Murray, March 5, 1875, 2 R. 507; Barron v. Dewar, July 7, 1887, 24 S.L.R. 735; Fleming v. M'Lagan, January 28, 1879, 6 R. 588; Urquhart's Trustees v. Urquhart, November 23, 1886, 14 R. 112; Lowson's Trustees v. Dicksons, June 19, 1886, 13 R. 1000; Wharton's Law Lexicon (7th ed.). 1883; Taylor's Jurisprudence (3rd ed.), ii. 299; Tidy's Medical Jurisprudence, part 2, p. 30, 31, 51 et seq. Vesting was not accelerated by the consents of the liferentrices. Vesting was accelerated where a wife took her legal rights, and repudiated provisions which postponed vesting of claims in others — Annandale v. Niven, June 9, 1847, 9 D. 1201, 19 Scot. Jur. 529; Alexander's Trustees v. Waters, January 15, 1870, 8 Macph. 414; Latta v. Muirhead, December 23, 1887, 15 R. 255. But for that result it must be clear that the postponement was for one purpose, e.g., the wife's sake. Here the postponement might be for other reasons— Alexander's Trustees (supra), per Lord Justice-Clerk, p. 417.

The respondent argued—This was a question of trust, and not of entail law. By trust law the petitioner could now insist on the conclusion of the trust, and sec. 27 of the Statute of 1848 applied. The testator desired to form one large estate to descend to the same series of heirs, with protection to the liferentrices. This purpose would be defeated if the respondents prevailed. Assuming that Margaret could have no issue, sec. 27 of the statute applied to the residue. The trustees were not directed to accumulate, there was no postponement or rights to be protected. They could employ the residue in buying land whenever they liked, but the land must be entailed whenever bought. With regard to the entail of Elvingston, if the last purpose were held to apply to the lands, no violence would be done to the testator's desire by granting the petition. The entail was postponed to protect the liferents, but these were protected. It was argued that the object was the protection of Margaret's issue and the later substitutes. But Margaret was past the age of childbearing, and the argument on the other side came to this—that the testator wished to protect the interests of distant relatives at the expense of his nearer relatives. The respondents construed the deed naturally— Alexander's Trustees v. Waters, supra. The death of the last survivor had legally happened in view of the liferentrices consents. The cases of Latta, Annandale, and Alexander, supra, and Lucas, 8 R. 502, applied, and did not differ in principle from the present. A woman of fifty-eight years could not have issue— Urquhart, supra; Croxton, 1878, L.R., 9 C.D. 388; Widdow's Trustee, 1871, L.R., 11 Eq. 408. Even if issue might be born the entail need not be postponed where the institute, whose right would be defeated, was still unborn— Mountstewart, 1707, M. 14,903, and 14,912; Preston Bruce, March 6, 1874, 1 R. 740; Forbes v. Burness, June 29, 1888, 15 R. 779.

At advising—