Scottish Court of Session Decisions

James Schank, Esquire, barrister-at-law, of 62 Gloucester Place, London, died upon 16th December 1871. He left a disposition and settlement by which he disponed to his sister, Lady Scott, wife of Sir James David Scott of Dunwald, in case she should survive him, “for her liferent use allenarly,” his whole property in Laurencekirk, commonly called “The Villa,” and after the death of Lady Scott he disponed the property of the villa to his nephew, Henry Alexander Schank, Esquire of Castlerig, also “in liferent, for his liferent use allenarly.” The deed then proceeded— “and after his decease I

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hereby give, grant, assign, and dispone such liferent use and enjoyment as aforesaid to the heirs of entail who may in succession and for the time be in possession, or have right to be in possession, of the entailed estates of Castlerig and Gleniston, in the county of Fife, under and in virtue of a deed of entail executed by the deceased Alexander Schank, Esquire of Castlerig, dated 18th March 1769, and an additional deed of entail executed by him, dated the 31st day of August 1771.”

In 1866 Henry Alexander Schank succeeded to the entailed estates of Castlerig and Gleniston. He disentailed the lands in 1871 and died in 1886, leaving a trust-disposition dated May 22, 1879, by which he disponed the lands formerly under the entail to his younger brother, William Edward Alexander Schank, who, however, made up his title, not under the trust-disposition, but as heir-at-law to Henry Schank.

Lady Scott, the liferentrix, died on the 9th of April 1894.

In November 1894 William Schank brought an action against his younger brother, Lionel Arthur Vansittart Schank, to have it declared that he was entitled to hold the lands formerly held under the entail, and which were described in the summons, as unlimited fiar.

He averred—“Had said estates of Castlerig and Gleniston not been disentailed by the said Henry Alexander Schank, the pursuer would now have been heir of entail in possession of said estates, and the defender, who is aged 35, and who is the immediate younger brother of the pursuer, would have been the next substitute heir entitled, on the death of the pursuer without issue, to succeed thereto.”

The defender averred—“In terms of the deeds above referred to, the pursuer's enjoyment of the lands and others described in the summons is limited to a fiduciary liferent allenarly. The beneficial fiar and disponee is the first heir under the said deed of entail of the estates of Castlerig and Gleniston, born, who, after the death of the said James Schank, would have succeeded to and been in possession of the said estates had they not been disentailed, as above referred to.”

The pursuer pleaded — “(1) The said estates of Castlerig and Gleniston have been disentailed by the said Henry Alexander Schank, and the destination in the said disposition and settlement of the subjects described in the summons having become thereby inoperative, the pursuer as heir-at-law in heritage of the said James Shank and Henry Alexander Schank is entitled to decree of declarator as concluded for.”

The defender pleaded— “(1) The destination in the said disposition and settlement of the subjects described in the summons has not become inoperative, and decree of declarator should be refused, with expenses. (2) The said Henry Alexander Schank was not entitled gratuitously to defeat the right of succession to the said subjects conferred by the said trust-deed and disposition on the heirs of entail of the said estates of Castlerig and Gleniston. (3) The said Henry Alexander Schank, as fiduciary fiar of the said subjects, was trustee for the succeeding liferenters and the beneficial fiar and disponee, and was bound, and the pursuer as his representative and heir-at-law is bound, to protect their interests.”

On February 1st, 1895, the Lord Ordinary ( Kyllachy) pronounced this interlocutor:—“Finds that, on a just construction of the disposition and settlement of the late James Schank, the destinations in liferent therein contained have not ceased to be operative, by reason of the disentail of the estates of Castlerig and Gleniston: Finds, therefore, that the pursuer is not entitled to possess the subjects in question in fee—simple as heir-at-law of James Schank: Assoilzies the defender from the conclusions of the summons; of consent finds no expenses due, and decerns.”

“ Opinion.—The question in this case is whether a certain destination of a property in Laurencekirk, contained in a disposition executed by the late James Shank, has failed and become inoperative, so that the property now reverts to the pursuer as James Schank's heir-at-law.

The destination in question is contained in the disposition and settlement of James Schank, dated 24th June 1869—The property is first disponed to Lady Scott, the disponer's sister, in liferent for her liferent use allenarly, and after her death to the testator's nephew, Henry Alexander Schank, Esquire, of Castlerig, in liferent for his liferent use allenarly, and after the decease of the said H. A. Schank the testator ‘gives, grants, assigns, and dispones such liferent use and enjoyment as aforesaid to the heirs of entail who may in succession and for the time be in possession or have right to be in possession of the entailed estates of Castlerig and Gleniston, in the county of Fife, under and in virtue of a deed of entail executed by the deceased Alexander Schank, Esquire, of Castlerig, dated 18th March 1769, and an additional deed of entail executed by him, dated the 31st day of August 1771, both recorded in the Books of Council and Session at Edinburgh on the 10th day of June 1801, and in the Register of Tailzies the 23rd day of June 1860.’

The facts which give rise to the question are these—Lady Scott, the first liferentrix, died in 1894. She was predeceased by the second liferenter, Harry Alexander Schank, who died in 1886. He (Harry Alexander) was heir of entail in possession of the estates of Castlerig and Gleniston, but had in 1871 disentailed that estate, and at the time of his death held it in fee-simple. He was succeeded by the pursuer, who was his brother, and made up his title as heir-at-law, the destination in the entail having been previously evacuated by a trust-disposition executed by the disentailer, to which it is unnecessary for the present purpose to refer.

The position therefore is, that there is, and was when Lady Scott died, not only no strict entail of the estates of Castlerig and

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Gleniston, but no operative taillied destination of that estate. In other words, the deed of entail referred to in James Schank's disposition is and was no longer in existence as an operative deed.

The question is, whether it is, in these circumstances, possible that anybody can now answer to the description of ‘heir of entail in possession of the entailed estates of Castlerig and Gleniston’ under the deed of entail mentioned. If not, the liferent in favour of Lady Scott exhausted James Shank's disposition, and the pursuer is entitled to decree. If, otherwise, the liferents in question continue at least until they reach an heir of entail of Gleniston, born after the date of the disposition as provided in the 48th section of the Rutherfurd Act.

The question thus raised is one of difficulty. Literally there can, of course, be no heir in possession, or having right to be in possession, under an entail which has ceased to exist. But, on the other hand, the disposition of the Laurencekirk property falls to be construed on ordinary principles, and it cannot, I think, be said that its language does not admit of construction. In other words, it is not impossible to hold that the disponer (not contemplating the event of disentail) used the words in question not as adjecting to the succession a condition depending on the possession of Castlerig and Gleniston, but simply as describing the person who, assuming the entail of that estate to remain in force, had right to the succession under it. What I have to decide is whether I am entitled to take such a liberty with the words which the disponer employs, words which, as I have said, taken literally, have a sufficiently definite meaning.

I confess that I should have hesitated to do so, however likely I thought the suggested construction to be in accordance with the disponer's intention, were it not for the recent judgment of the Second Division of the Court, in the case of Gillanders' Trustee v. Gillanders, decided on 22nd December 1894. But I think that that judgment, of which I have been furnished with a report, goes a long way to support the view which I have mentioned. It is true that the actual decision proceeded on a separate and special ground. But the opinion expressed in the later paragraphs of the Court's judgment appears to me to deal with words of destination, substantially identical with those here in question, and I think I am entitled, if not bound, to follow that opinion, which I accordingly propose to do.

I propose, therefore, to find, that on the just construction of Mr James Schank's disposition, the destinations in liferent therein contained have not ceased to be operative by reason of the disentail of the estates of Castlerig and Gleniston, and that therefore the pursuer is not entitled to possess the subjects in question in fee—simple as James Schank's heir-at-law, and that the defender is, for the same reason, entitled to be assoilzied from the conclusions of the summons.”

The pursuer reclaimed, and argued —The Lord Ordinary had misread the case of Inglis v. Gillanders. In that case, as shown by Lord Watson's opinion in the House of Lords ( 32 S.L.R. 479), there were two distinct substitutions separated by the word “and.” The first substitution depended on the possession by the heir of entail of the estate of Highfield, and as that estate had been disentailed there could be no heir of entail in possession, and the substitution was therefore void. But the second substitution only provided that the heir should show that he possessed the character of an heir-substitute designated in the deed of entail under which Highfield was held at the date of the trust-deed, and it was upon that substitution being effectual that the House of Lords founded their judgment. The terms of the destination in the first substitution were very much the same as the terms employed here by the truster, and the House of Lords held that such a substitution would have been void in the circumstances which had occurred here. The case of Gillanders was therefore a direct authority for the pursuer.

The defender argued—The Lord Ordinary was right. In the ease of Gillandersthe Court held that the trustees of the testator had not acted ultra vires in making the destination of the estate of Newmore to the heirs of entail of Highfield under the terms of the deed, and that that destination did not become inoperative when the estate of Highfield was disentailed. The destination in that case was much the same as the destination in the present case and the same result must follow; and consequently the destination in liferent to the heirs of entail in possession or who might have right to be in possession of the entailed estates of Castlerig and Gleniston had not become inoperative.

At advising—