Scottish Court of Session Decisions

Mr Serjeant Bain died on 30th December 1874 leaving a trust-disposition and settlement dated 24th October 1874. He was survived by his widow, who died in 1893, and by a daughter, Miss Charlotte Bain, who in 1876 married Major William Geddes. Mr and Mrs Bain had another daughter, Miss Frances Anne, who married Captain Sandys, and predeceased her father leaving one daughter Frances Catherine, and three sons, William, Henry, and Edwin. Of these the daughter died in 1878 unmarried, and without having attained the age of twenty-five. Serjeant Bain left a considerable amount of property, including the lands of Easter Livelands and others.

By his trust-disposition he conveyed his whole estate to trustees, and directed them to allow to his widow and surviving daughter the liferent use of the mansion-house of Easter Livelands, furniture, pictures, &c. After dealing with part of his property in the earlier clauses, he provided as follows—“ Eleventh. I direct and appoint my trustees, but that with and under the express burdens of the foresaid liferent rights and annuities in favour of the said Mary Ann Horsman or Bain, and Charlotte Elizabeth Sandys Bain, to hold and stand possessed of my estates of Easter Livelands, Broadleys, Queenshaugh, and Lochend and Bents, all situated in the parish of Saint Ninians and county of Stirling as aforesaid, together with all my pictures painted in oil which may be in Easter Livelands mansion—house at my death, in trust for behoof of Frances Catherine Mary Sandys, sole surviving daughter of the marriage betwixt my deceased daughter Frances Ann Sandys Bain and Edwin William Sandys, captain in the Royal Artillery, and the heirs of the body of the said Frances Catherine Mary Sandys, aye and until the said Frances Catherine Mary Sandys shall have attained the age of twenty-five years complete, at which period I direct and appoint my trustees to convey, dispone, and make over my said estates of Easter Livelands, Broadleys, Queenshaugh, and Lochend and Bents, situated as aforesaid, and the said paintings in oil, to the said Frances Catherine Mary Sandys and her foresaids, but expressly under burden of the foresaid liferent rights and annuities, and exclusive of the jus mariti, right of administration, and courtesy, and all other title of any husband whom my said granddaughter may marry; and in case the said Frances Catherine Mary Sandys shall die before attaining the age of twenty-five years, leaving issue, my trustees shall convey the said estates, under burden as aforesaid, to and in favour of the nearest heir of the body of the said Frances Catherine Mary Sandys who shall attain the age of twenty-five, and the heirs of his or her body, whom failing, to the other heirs of the body of the said Francis Catherine Mary Sandys: But in case the said Frances Catherine Mary Sandys shall predecease me or shall die before attaining the said age of twenty-five years without leaving issue, then my trustees shall hold, in like manner and under burden of said liferent rights and annuities, my said estates of Easter Livelands, Broadleys, Queenshaugh, and Lochend and Bents, and also my said paintings in oil, in trust as aforesaid for behoof of the younger sons procreated of the marriage betwixt my daughter and the said Edwin William Sandys respectively and successively in the order of seniority, and to the heirs of their bodies respectively, and shall dispone, convey, and make over, but that under burden of the foresaid liferent rights and annuities, my said estates of Easter Livelands, Broadleys, Queenshaugh, and Lochend and Bents, and my said paintings in oil, to the person who, in the event foresaid, may succeed thereto, and who shall attain the age of twenty-five years, on him or her attaining said age, and in case none of my younger grandchildren shall attain the age of twenty-five years or leave issue who shall attain that age, then to my said daughter Charlotte Elizabeth Sandys Bain and the heirs of her body, whom all failing, to William Bain Richardson Sandys, eldest son of my said deceased daughter, on his attaining the age of twenty-five years complete, and the heirs of his body, and whom all failing, to my own heirs whomsoever: Declaring that any child or children of my said daughter, or the issue of such child or children, who may succeed to the heritable property in Yorkshire which belonged to the late William Richardson, Esquire, of Fulford House, near York, formerly Lieutenant-Colonel of the Royal Horse Guards, and uncle of the said Edwin William Sandys, shall be and hereby is and are excluded from succeeding to my said estates of Easter Livelands, Broadleys, Queenshaugh, and Lochend and Bents, in virtue of these presents, and shall be bound to cede and renounce possession of my said last-mentioned estates and said paintings in oil on so succeeding to said property in Yorkshire, in favour of the other children above mentioned, or their issue, so long as any other child or issue of any child of my said deceased daugher exists: Declaring, as it is hereby specially provided and declared, that it shall not be in the power of the said Frances Catherine Mary Sandys or her foresaids, or any of the other children of my said daughter or their issue, who may succeed under these presents to my said estates in the parish of Saint Ninians and

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county of Stirling, to sell or dispose of the same, or of my said paintings in oil, or to contract debt whereby the same may be affected, or to alter the order of succession herein prescribed: And for the purpose of rendering these prohibitions effectual, I direct my said trustees to cause these presents (or so much thereof as it may be necessary to record for that purpose) to be registered in the Register of Tailzies, it being my express desire that Easter Livelands, Broadleys, Queenshaugh, and Loch-end and Bents, all situated as aforesaid, and said paintings in oil, shall remain in perpetuity in the family of my said deceased daughter, in terms of the foregoing destination, and failing all such children, that it shall revert to and become the property of my own heirs whomsoever; also declaring that the said Edwin William Sandys is strictly debarred, as I do hereby now and forever debar him from having management or control in any manner of way whatever with or over my said estates of Easter Livelands, Broadleys, Queenshaugh, and Lochend and Bents, or with my said paintings, notwithstanding any of his children succeeding thereto under these presents: Further declaring that it is my wish (and which I trust my descendants will respect) that every decendant of mine succeeding to my said last—mentioned estates shall use the additional surname of ‘Bain.’”

Mr Henry Sandys, the second son of the truster's daughter Mrs Sandys, reached the age of twenty-five on 30th March 1896, and did not succeed to the estates in Yorkshire mentioned in the trust-deed.

He raised an action against the trustees acting under the trust-disposition, against Mrs Geddes, and against his two brothers William and Edward Sandys, concluding for declarator that the trustees were bound to “execute and grant a disposition, containing all usual and necessary clauses, of All and Whole the lands and estates of Easter Livelands, Broadleys, Queenshaugh, and Lochend and Bents, all situated in the parish of St Ninians and county of Stirling, all as the same may be more fully described in the respective title-deeds thereof, and that to and in favour of the pursuer, but with and under any debts or other burdens lawfully affecting the same, and in particular under burden of all right over the same or any part thereof by way of liferent, annuity, or otherwise, conferred upon the said Mrs Charlotte Elizabeth Sandys Bain or Geddes by the said trust-disposition and settlement, and also to convey, make over, or deliver to the pursuer the paintings in oil specially referred to in and bequeathed by the said trust-disposition and settlement.”

The pursuer pleaded—“(2) The defenders, Serjeant Bain's trustees, are not bound nor entitled to execute an entail of the lands and paintings in question, in respect that the trust-disposition and settlement contains no effectual limitation of the destination of the property applicable to the circumstances which have occurred, and no irritant or resolutive clauses, nor any effectual provision for registration of a deed of entail, such as might be equivalent thereto. (3) Separatim—In any case, the said paintings fall to be delivered to the pursuer, in respect that it is incompetent to subject them to the fetters of an entail.”

Answers were lodged by the defenders Bain's trustees.

They averred “that in virtue of the directions contained in the said trust-disposition and settlement they are entitled and bound to execute and see duly recorded a valid disposition and deed of entail of said lands and oil paintings in favour of the pursuer as institute of entail, and the other heirs-substitute specified in the said trust-disposition and settlement in their order of succession. They propose to insert in said deed all clauses necessary to carry out the trust purposes connected with the subjects of conveyance, so far as unfulfilled, and in particular all clauses usual and necessary for placing and preserving the said lands and oil paintings under the fetters of a strict entail. Such a deed they are and always have been ready and willing to grant, under burden of the rights of Mrs Geddes, and to give possession to the pursuer in terms thereof. In any event, they are entitled and bound to execute such a conveyance of the lands, and if it be held that said deed ought not to comprise the paintings in oil they are not bound to deliver the same to the pursuer during the lifetime of Mrs Geddes, the liferentrix. The paintings in oil are family portraits.”

The Lord Ordinary ( Kincairney) on 27th January 1897 pronounced the following interlocutor:—“Finds that the eleventh clause of the trust-disposition and settlement of the deceased Edwin Sandys Bain of Easter Livelands, Serjeant-at-law, imports a direction to his trustees to convey the lands therein mentioned to the pursuer, and a series of heirs-substitute, under the fetters of entail: Therefore assoilzies the de

fenders from the conclusion of the summons, and decerns,” &c.

Opinion.—“The pursuer when he attained the age of twenty—five became entitled to a disposition from Serjeant Bain's trustees of the lands of Livelands, and other lands specified, and also of certain pictures, under burden of the liferent conferred on the truster's daughter Mrs Geddes. The question is, whether he is entitled to a disposition in fee-simple in favour of himself alone, or, as Serjeant Bain's trustees maintain, only to a deed of entail in favour of himself, and a series of substitute-heirs of entail. This action concludes for declarator that the pursuer is entitled to a disposition in fee-simple. The defenders have not lodged any deed in the terms which are in their opinion authorised by the trust-deed; and I am not asked to consider the terms of the deed to be granted if it be a deed of entail. What the pursuer contends is ( first) that the truster has directed his trustees to convey the subjects to him alone without any ulterior destination, and ( second) that he only directs the trustees to dispone the subjects to him, and does not instruct or

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empower them to insert in the disposition the clauses of an entail. The defenders maintain that they are bound and empowered to execute an effectual entail, although not in the manner directed, and that the truster has adequately indicated the persons in whose favour the entail should be granted.

Serjeant Bain had two daughters, Charlotte, now Mrs Geddes, a defender, and Frances Anne, who married Captain Sandys, and predeceased her father. She left one daughter, Frances Catherine, and three sons, William, the eldest, who is a defender; Henry, the second son, who is pursuer; and Edwin, the third son, called as a defender.

Serjeant Bain died in 1874. His granddaughter Frances Catherine died in 1878, unmarried, and without having attained the age of twenty-five. The pursuer attained that age in March 1890, and thereupon became entitled to a disposition of the subjects in question.

Serjeant Bain seems to have left a considerable amount of property, and gives directions as to part of it in the earlier clauses of his trust-deed, which are not now in question. The present question depends solely on the eleventh clause, which deals with the lands of Liveland and others, and with the paintings, under burden of the rights of liferent conferred by an earlier part of the deed on the truster's widow (now dead), and on Mrs Geddes, his daughter.

“The clause is singularly expressed, and it is necessary to examine it somewhat narrowly. The trustees are directed to hold the subjects in trust for the truster's granddaughter Frances Catherine until she should attain the age of twenty-five, and then to dispone the lands and paintings to her and her foresaids— i.e., the heirs of her body; and in the event of her death before twenty-five, the truster directs his trustees to dispone the estate to the nearest heir of her body who should attain the age of twenty-five, and the heirs of his or her body. It is not necessary to consider the precise nature and effect of these two destinations, because they have failed in consequence of the death of Frances Catherine unmarried without having attained the age of twenty-five. The deed then provides for the case of Frances Catherine dying before twenty-five without issue, and that is the event which has happened. The trustees are directed in that event to hold the subjects in trust “for behoof of the younger sons” of Frances Anne (Mrs Sandys), “respectively and successively in the order of seniority, and to the heirs of their bodies respectively,” and to dispone the subjects “to the person who in the event foresaid may succeed thereto, and who shall attain the age of twenty-five years, on him or her attaining said age.” That is the clause on which the pursuer's case is founded. The deed then proceeds— “and in case none of my younger grandchildren shall attain the age of twenty-five years, or leave issue who shall attain that age, then to my said daughter Charlotte”

(Mrs Geddes), “and the heirs of her body, whom all failing, to William Bain Richardson Sandys, eldest son of my said deceased daughter, on his attaining the age of twenty-five years complete, and the heirs of his body, and whom all failing, to my own heirs whomsoever.”

That is the clause of destination. Then follows a clause of devolution to take place in the event of any child of the truster's daughter Frances Catherine, or her issue, succeeding to estates in Yorkshire, which it is not necessary at present to quote.

Then follow the clauses on which the defenders found. [ His Lordship read the declaration.].

As the case regards primarily a trust-deed, not a deed of entail, there is no room for the rules of strict construction applicable to entails, and the first point to be considered necessarily is the intention of the truster. I think it very clear that the truster's desire and intention was that his estates should be conveyed under the fetters of an entail. His deed expresses all the essential prohibitions against contracting debt, alienation, or altering the order of succession. The strictest deed of entail need contain no more; and he expresses his desire to make the prohibitions effectual, which could only be insured by irritant and resolutive clauses. He indeed has another method for making these prohibitions effectual. He directs the registration of his own trust-deed in the register of tailzies. Both parties were agreed that that direction was a somewhat gross blunder, and that compliance with it would have no effect. Still the direction indicates unmistakeably the truster's desire that his lands should be entailed—I think just as unmistakeably as if he had directed an entail expressly. No other object for these provisions was suggested. In some cases the question has been which of two inconsistent objects the truster preferred, as in the case of Graham v. Lyndoch's Trustees, March 15, 1852, 15 D. 558, aff. 2 Macq 295, 27 Scot. Jur. 473, where it was a debateable question whether the truster desired that his lands should descend to the same heirs as certain other lands, the succession to which had been appointed by a deed of entail found to be ineffectual, or whether he desired that the lands should in any case be effectually entailed. But here no motive for the prohibitory clauses and the direction to record in the Register of Tailzies can be suggested except to secure the destination of the lands by force of an entail.

Further, it seems clear that the truster desired that the lauds should go in a particular order of succession, and at least thought that he had directed a definite destination. He states expressly that his object was that the lands and paintings ‘shall remain in perpetuity in the family of my said deceased daughter, in terms of the foregoing destination.’ It is true, and somewhat embarrassing, that one of the destinations—that in favour of Mrs Geddes—is inconsistent with this object; that discrepancy is not easily explained, but still I think that it does not affect the conclusion

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that the truster's desire and intention was that his estates should be entailed on the children of his daughter Frances Catherine in the order pointed out, except perhaps so far as that design might be interfered with by the succession of Mrs Geddes.

The next question is, whether the truster's object can receive effect consistently with the terms of the trust-deed. If it can, then the trustees are bound to make a deed of entail; if it cannot, then they are bound to dispone the lands in fee simple to the pursuer.

There are two questions, both of them difficult—(1) whether he has directed a destination capable of being protected by tailzied clauses, and (2) whether the insertion of such clauses in the disposition to the pursuer is in the power of the trustees.

The first, and I think the more difficult question, is as to the destination. A number of persons are mentioned in a certain order; but the peculiarity and difficulty of the clause seems to lie in this, that it is so expressed as to seem to call some of the persons mentioned as conditional institutes and not as substitutes; and the pursuer, as I understand, contends that the destination consists of a series of conditional institutions, and that, if that be its character, it is clearly impossible that it can be entailed, for in that view, whenever any member in the destination succeeded, all who came after him would be necessarily excluded. The pursuer, I understand, contends that he is called as a conditional institute, and I think that a somewhat doubtful point. But I do not see how it can be disputed that Mrs Geddes is called as a conditional institute, and not as a substitute, for she is called only in the event of none of the younger sons attaining twenty-five years of age, and she is not called if either of them does attain that age and thereupon succeeds to the estates. So far as I see at present, she stands excluded from the destination. There is nothing, however, in the words of the clause which makes it necessary to hold that the youngest son Edwin and the heirs of his body (for I think that the heirs of his body are called, although through oversight omitted) are called as conditional institutes, and not as substitutes, or to hold that the eldest son and the heirs of his body are called as conditional institutes. They are called in the ordinary way in which heirs-substitute are called. It may be very unusual and very embarrassing that some members in a destination are called as conditional institutes and some as substitutes, but it does not seem impossible; and, if the language of the clause of destination makes it possible to hold that some of the persons called are called as substitutes, and if it be the intention of the truster that they should be so called, and if the whole intention of the truster would be defeated were they regarded as conditional institutes, I think the construction which does not defeat the truster's intention may legitimately be preferred.

I therefore hold that there is here a destination expressed which is susceptible of being protected by the fetters of an entail, and that enables me to repel the contention of the pursuer that there is no true destination without deciding what the destination should be, a matter which this action does not submit for decision.

The next question is, whether the trust-deed authorises the execution of an entail. If the truster has made his intention clear that there should be an entail, then I think that the case is the same as if he had expressly directed the execution of an entail. Although it be clear that the truster desired an entail, it is far from clear how he intended that his object should be effected, but it is quite clear that it could not be effected by following his directions.

I am inclined to think that the trust-deed directs the trustees to do nothing but make a disposition, and gives them no instruction whatever about its clauses. I incline to the opinion that the truster does not direct the insertion of a clause of devolution or of prohibitory clauses in the disposition which the trustees are to execute. He expresses the condition of devolution and the prohibitory clauses in his own deed, and his idea seems to have been to effect an entail not by means of the disposition to be executed by his trustees, but by the combined effect of that deed and his own trust-deed and the registration of that trust-deed in the Register of Tailzies. It appears clear that, if that was his view, he was under a complete delusion, and that an entail could not be effected in that manner. It was decided in the case of Munro v. Johnstone, December 18, 1868, 7 Macph. 250, that an entail could not be effected by means of a disposition without fettering clauses and a relative explanatory deed with fettering clauses but without dispositive words. I suppose that, in directing the registration of the trust-deed in the Register of Tailzies, the truster imagined that such registration would of itself effect an entail under the provisions of section 39 of the Entail Amendment Act (11 and 12 Vict. cap. 35). But that was not maintained by the defenders. Section 39 authorises the registration of a deed of entail, and provides that such registration shall have the same effect as if the proper clauses were inserted in the deed registered. But the trust-deed does not purport to be a deed of entail. It is a disposition to the trustees in fee-simple, and the insertion of the statutory clauses in the trust-conveyance would be a mere absurdity.

But if it were held that there is a direction, express or implied, to insert the prohibitory clauses in the disposition, to be executed by the trustees, the disposition would still be ineffectual as an entail because of the want of irritant and resolutive clauses. In short, it is clear that an effectual entail could not be made by following the directions of the truster.

But the defenders maintained that when a truster directs his trustees to make an entail of his estates, or clearly expresses his desire that such an entail should be made, a power is thereby conferred to execute an

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effectual and statutory entail, although the truster should give faulty instructions as to the manner in which the entail was to be made, which, if followed, would not result in the execution of a good entail. Thus it has been held that trustees are entitled to insert a clause excluding heirs-portioners, where the destination would not otherwise be protected— Sprot, May 22, 1828, 6 S. 833; Forrest's Trustees v. Martine, December 14, 1845, 8 D. 304; and in other cases trustees were held entitled to insert clauses which were omitted in the truster's instructions, as in Campbell's Trustees v. Campbell, May 17, 1836, 14 S. 770; Stirling v. Stirling's Trustees, November 30, 1838, 1D. 130; Seton v. Seton, March 1, 1854, 16 D. 658; and Graham v. Imndoch, March 15, 1852, 15 D. 558, affirmed 2 Macq 295, 27 Scot. Jur. 473. In Moubray's Trustees v. Moubray, June 26, 1895, 22 R. 801, materials were found for a deed of entail in certain testamentary jottings of an extremely imperfect kind. It is true that in all these cases there was an express direction to execute a deed of entail, and I think that in all of them the Court construed the directions as meaning that all clauses necessary to make a valid entail should be inserted in the deed to be granted. In order to reach a judgment for the defenders in this case, it is necessary to go a point beyond them, and to proceed on an authority implied, and not on the construction of an authority or direction expressed. Still they seem to proceed on the principle that when entail is directed, the deed necessary for making the entail is also by implication directed, and that mistaken instructions by the truster will be disregarded.

In Leny v. Leny, June 28, 1860, 22 D. 1272, where the truster directed his trustees to make an entail in favour of the institute and his lawful heirs for ever in regular succession, it was held that no effectual entail could be made in such terms, and that the trustees were not entitled to insert a clause excluding heirs-portioners, because such a clause was inconsistent with a destination to heirs in regular succession, but the other case in which the insertion of that clause was authorised was not questioned.

The pursuer quoted Cuming's Trustees v. Cuming, July 10, 1832, 19 S. 804, but I do not think it favours his case. In that case there was no direction to execute an entail, but a truster directed his trustees to denude of the residue, ‘with such conditions that the heirs shall not dispose of the same nor alter the succession thereof either gratuitously or onerously.’ Here it will be observed that prohibitions against alienation and alteration of the order of succession were directed, but not a clause prohibiting contraction of debt, and the Court refused to authorise the addition of a prohibitory clause to that effect; but it is to be observed that they authorised irritant and resolutive clauses applicable to the prohibitory clauses directed. Now, in the present case, the prohibitory clauses are complete, and if irritant and resolutive clauses were added in the disposition, as in the case of Cuming, the result would be an unchallengeable entail.

The pursuer not unnaturally placed much reliance on the case of Cameron's Trustees v. Cameron, December 14, 1860, 23 D. 167, which certainly resembles the present case in several particulars. The case regarded a trust-deed, whereby the truster directed his whole estate, heritable and moveable, to be conveyed in favour of a certain series of heirs with such restrictions and limitations as should effectually prevent the order of succession from being altered. It was contended that clauses prohibiting sales and contraction of debt should also be inserted, and that the estate should be conveyed under the fetters of a strict entail. But that contention was rejected. Lord Curriehill, who delivered the judgment of the Court, gives three reasons for his judgment. The first was that there was no direction to entail. But his Lordship stated that he did not lay much stress on that circumstance. The second reason, described as more important, was that the direction of one prohibitory clause and not of the others brought into operation the principle of construction enumeratio unius est exclusio alterius; and the third reason was that the direction in the trust-deed related to English moveable estate as well as to Scotch heritage. It is thus clear that this case differs from the case of Cameron in essential particulars, and chiefly in these, that in this case the intention of the truster that his estates should be entailed is clear, which it was not in the case of Cameron, and that in this case the prohibitory clauses are complete.

On a careful consideration of these cases I hold that they warrant the conclusion that when a truster directs an entail to be executed he is held in dubio to direct his trustees to execute a statutory entail, his own mistaken instructions as to details notwithstanding, and that no sound distinction can be taken between a trust-deed in which the truster expressly directs the execution of an entail and a trust-deed in which an intention to that effect is plainly indicated.

For these reasons I hold that the defenders would not be truly fulfilling the directions of the truster if they granted a disposition in fee-simple in the pursuer's favour. If that be so, the result is that I must pronounce decree of absolvitor.

I am not in a position to decide what the terms of the disposition should be which the trustees are bound to grant. That question is not in this action.

The question was discussed, whether the clause of devolution should be inserted in the deed. But that was only questioned, as I understood, in the event of the decision being that the pursuer was entitled to a disposition in fee-simple. The question which would have arisen in that case would have been one of difficulty, my present impression being that I should have followed the precedent in the case of Munro v. Johnstone, where a clause of that kind was held to be ancillary to the entail and not to be binding when it was found that the entail was ineffectual.

It is further pleaded by the pursuer

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that in any case the paintings fall to be delivered to him because they could not be entailed, as was decided by Lord Shand in Kinnear v. Kinnear, March 20, 1875, 4 R. 705. If it were necessary to do so, I should, as at present advised, follow that decision. But there is no reason for deciding that point. The pictures must be disponed to the pursuer in the deed disponing the lands, for that is clearly in accordance with the directions and intention of the truster. Probably no attempt to apply the fetters of an entail to them would be effectual. But the terms in which they ought to be disponed will arise for consideration if it ever should be necessary to adjust the disposition at the sight of the Court. But the plea of the pursuer is that the pictures fall to be delivered to him. But that cannot be while Mrs Geddes has a right to liferent them.”

The pursuer reclaimed.

The arguments of the parties appear fully in the opinion of the Lord Ordinary and Lord Kinnear.

In the course of the argument the Court directed the defenders to execute a disposition and deed of entail in favour of the pursuer, in accordance with their contentions, and this was accordingly done. The judgment of the Court, however, was not affected thereby, and it is accordingly unnecessary to refer to its terms.

At advising—