Scottish Court of Session Decisions

On 30th May 1888 Mr Francis Edmond, advocate in Aberdeen, granted the following holograph disposition of his lands of Kingswells:— “I, Francis Edmond, advocate in Aberdeen, for certain good causes and considerations, do hereby give and dispone to and in favour of John Edmond, advocate in Aberdeen, my youngest

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son in liferent, but for his liferent use only, and after his death to the Provost of Aberdeen, the Principal of the University of Aberdeen, the Principal of the Free Church College in Aberdeen, the Minister of the Gilcomston Free Church in Aberdeen, and the Minister of the Free Church at Kingswells, all for the time being, and their successors in their respective offices, and Gray Campbell Fraser, advocate in Aberdeen, and such others as I may afterwards nominate, and the acceptors or acceptor, as trustees for the uses, ends, and purposes specified, or to be specified by me, in any writing under my hand [then followed a description of the lands disponed] together with all my right and interest in the said lands and others; but always with and under the burden of the subrent payable by me to the trustees of the late Andrew Jopp during the life of their nominee, and the annuity of £350 payable to Mrs Mary Shier or Edmond, my wife, during her life, under our contract of marriage. And I reserve my own liferent. And I dispense with delivery. And I consent to registration.—In witness whereof,” &c.

This disposition was registered in the Books of the Lords of Council and Session for preservation on 19th January 1889.

On the extract of this deed the following power, dated 4th November 1891, was endorsed by Mr Francis Edmond:—“I, Francis Edmond, advocate in Aberdeen, the granter of the deed of which the foregoing is an extract, do hereby confer on John Edmond, advocate in Aberdeen, power to output and input tenants, and to grant leases of my said lands or any parts thereof, for a period not exceeding nineteen years, upon such terms and conditions, and for payment of such rents as he shall think proper.—In witness whereof,” &c.

Mr Francis Edmond died on 11th September 1892, leaving a trust-disposition and settlement dated 25th November 1890, and relative codicils. This trust—disposition proceeded on the narrative that the testator had granted a separate disposition of his lands of Kingswells in favour of his son John Edmond, advocate in Aberdeen, and others under the burden of an annuity to the testator's wife, and disponed to certain trustees his whole other lands, means, and estate, heritable and moveable.

In Mr Francis Edmond's repositories there was found after his death a sealed envelope bearing the following endorsation holograph of himself:—‘The enclosed deed is not to take effect nor come into operation until after the death of my son John Edmond, and it would not be for his comfort or interest, or the advantage of others who may after my son's death have an interest, and I therefore enjoin my trustees and executors not to open the envelope, but to secure the deed to be strictly private in all its parts until my son's death.— Francis Edmond, 4th November 1891.”

Unless this sealed envelope contained a writing under the hand of Mr Francis Edmond specifying the trusts upon which the estate of Kingswells was to be held after the death of Mr John Edmond, it was admitted that Mr Francis Edmond left no such writing at all.

Mr John Edmond was his father's only surviving child and heir-at-law.

On 11th October 1895 the disposition of Kingswells quoted above was registered in the Register of Sasines on behalf of John Edmond in liferent for his liferent use only.

No trustees under the conveyance of 1888 accepted office under the provisions of that deed.

On 14th June 1897 Mr John Edmond brought an action in which he called as defenders (first) the persons then holding the offices of Lord Provost of Aberdeen, Principal of the University of Aberdeen, Principal of the Free Church College in Aberdeen, Minister of the Gilcomston Free Church in Aberdeen, and Minister of the Free Church at Kingswells, and Gray Campbell Fraser, advocate in Aberdeen, who are in this report referred to as the Kingswells' trustees, and (second) his father's testamentary trustees.

The conclusions were for declarator (1) that the endorsation written on the sealed envelope found in Mr Francis Edmond's repositories did not by itself or along with the document, if any, which the said sealed envelope contained, in any way affect the succession to the lands of Kingswells, and (2) that the deceased Francis Edmond died intestate quoad the succession to the fee of the lands of Kingswells, and that the pursuer as his only surviving child and nearest and lawful heir was entitled to have himself served heir to the fee of these lands, or otherwise for declarator that under the disposition of 30th May 1888 the pursuer besides being liferenter of the lands of Kingswells, was holder of the fee of the said lands in trust with all the powers competent to and exerciseable by a trustee under the common and statute laws of Scotland, for behoof of himself or the other person or persons, if any, to whom they had been conveyed by the deed enclosed in the said sealed envelope, or otherwise if the said sealed envelope did not contain any deed containing a valid conveyance of the said lands, then in trust for himself and his heirs.

The pursuer set forth the deeds and facts mentioned in the foregoing narrative, and further averred that he had been obliged to make extensive alterations and repairs upon the mansion-house of Kingswells, and also upon the farm steadings, to enable the farms to be relet, and to comply with the requirements of the sanitary authorities, that he had spent upon the estate a sum of £3000, which expenditure was wholly of the nature of capital expenditure, such as a liferenter was under no obligation to make, but which was absolutely necessary in the proper administration of the estate, and to ensure the lands continuing to make a return sufficient to meet the sub-rent payable to Jopp's trustees and Mrs Edmond's annuity, and that the trustees mentioned in the conveyance of 1888 were unable to make any arrangement for reimbursing the

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pursuer, because they could not know until the pursuer's death whether the document in the sealed envelope applied to Kings-wells, and if so, what powers, if any, it might confer upon them, and also because, in any view, such powers could only be exercised after the pursuer's death, and by the holders at that time of the designated offices and Mr Campbell Fraser if then in life. The pursuer also stated that on obtaining decree in terms of the first conclusion he would serve heir to his father, and thereafter execute a deed binding himself not to alienate Kingswells, and obliging himself as at the date of his death to dispone the estate to the trustees under the disposition dated 30th May 1888, for the purposes specified in the document contained in the sealed envelope if applicable to Kingswells, and, if not, for behoof of the nearest heirs of Francis Edmond.

The defenders, the Kingswells trustees, averred, inter alia— “These defenders believe and aver that the enclosure in the sealed envelope before mentioned is a valid testamentary writing under the hand of the deceased, expressing the ends, uses, and purposes for which the lands are to be held in trust under the holograph disposition of 30th May 1888, after the pursuer's death.”

The defenders, the testamentary trustees, averred, inter alia—“Believed and averred that the fee of said estate is disposed of by the document contained in the sealed envelope referred to, which is in the custody of these defenders. By his trust-disposition and settlement Dr Edmond disposed of the whole of his estate with the exception of the fee of Kingswells, and there is nothing else to which the sealed document can refer.”

The defenders, the Kingswells trustees, pleaded, inter alia—“(3) The pursuer's statements are irrelevant, and insufficient to support the conclusions of the summons. (4) The fee of the lands in question having been validly disposed of by the holograph disposition of 30th May 1888, and the testamentary writing contained in the sealed envelope left by the deceased, the defenders should be assoilzied.”

The defenders, the testamentary trustees, pleaded, inter alia—(2) The pursuer's averments are irrelevant.

On 20th July 1897 the Lord Ordinary ( Low), after hearing counsel in the Procedure Roll, issued the following interlocutor:—“Finds that upon a sound construction of the disposition executed by the deceased Francis Edmond on 30th May 1888, the said Francis Edmond disponed the lands and estate of Kingswells to and in favour of the pursuer in liferent, but for his liferent use only, and to the Provost of Aberdeen, the Principal of the University of Aberdeen, the Principal of the Free Church College in Aberdeen, the minister of the Gilcomston Free Church in Aberdeen, and the minister of the Free Church at Kingswells, all for the time being, and their successors in their respective offices, and Gray Campbell Fraser, advocate in Aberdeen, in fee, as trustees for such ends, uses, and purposes, to come into operation after the pursuer's death, as the said Francis Edmond might specify by any writing under his hand: With that finding appoints the cause to be enrolled for further procedure, and grants leave to reclaim.”

Opinion—“The late Mr Francis Edmond, who died in 1892, left (1) a disposition of the estate of Kingswells, dated in 1888; (2) a trust-disposition and settlement disposing of all his other means and estate; and (3) a sealed envelope upon which was written a direction to his trustees that it should not be opened until the death of the pursuer.

By the disposition Mr Edmond disponed Kingswells to the pursuer, his son, ‘in liferent, but for his liferent use only, and after his death to the Provost of Aberdeen, the Principal of the University of Aberdeen, the Principal of the Free Church College in Aberdeen, the minister of the Gilcomston Free Church in Aberdeen, and the minister of the Free Church at Kingswells, all for the time being, and their successors in their respective offices, and Gray Campbell Fraser, advocate in Aberdeen … as trustees, for the uses, ends, and purposes specified or to be specified by me, in any writing under my hand.’

It is admitted that Mr Edmond did not leave any writing specifying the trusts upon which Kingswells was to be held after the pursuer's death, unless the sealed envelope contains such a writing.

The pursuer took infeftment in 1895 upon the disposition in liferent for his liferent use only. The trustees under the disposition have not accepted office.

The pursuer in the present action seeks to have it declared that his father died intestate quoad the fee of Kingswells, and that he, as his father's only surviving child, is entitled to have himself served heir to the fee of the said estate.

The pursuer argued that the disposition to the trustees in the deed of 1888, being only after his death, the fee of the estate as at the testator's death is not disposed of, and that he as heir-at-law is therefore entitled to take it up.

I do not think that there is any doubt as to what the testator's intention truly was. He intended to give the estate to his son in liferent, and to the trustees in fee, for purposes to take effect after the expiry of the liferent. The question is whether the disposition is capable of being construed so as to give effect to that intention. I think that it is. The pursuer contends that the disposition must be read strictly and literally as containing no gift of the fee until ‘after his death.’ It seems to me that by these words the testator intended no more than that the substantial fee in the trustees, and their right to the possession and administration of the estate, should be postponed until the pursuer's death. If the words ‘after his death’ had been introduced at a different part of the deed (as, for example, after the words ‘as trustees’) there would have been no difficulty, and seeing that, in my judgment, the intention is clear, I do not think that there is any incompetency in giving no greater or

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further effect to the words, notwithstanding their position in the deed, than that which the testator intended them to have.

Where a testator has left his estate in liferent and fee with the clear intention of disposing absolutely of the estate, it has never been held, so far as I know, that there was intestacy. Take the case of a disposition to a parent in liferent allenarly, and children nascituri in fee. In that case it is settled that there is a fiduciary fee in the parent. That rule was originally adopted to prevent the anomaly of the fee of a feudal estate being in suspense until the birth of children. Such a case has always been regarded as a case of undoubted testacy, and it has never been suggested that the heir-at-law could step in and carry off the fee of the estate.

Accordingly, even if, upon a sound construction of the disposition, there was no gift to the trustees until after the pursuer's death, I do not think that the result would be intestacy, but a fiduciary fee in the pursuer. I do not know that the rule to which I have referred has ever been applied, except in the case of parent and children, but I see no reason in principle why it should not be applied in analogous cases, even although the relation of parent and child did not exist.

I do not think, however, that in this case there is any need to resort to the fiction of a fiduciary fee in the pursuer, because the trustees are in existence, and, as I have already said, I think that the disposition can be construed as importing an immediate conveyance of the fee to them, although they are not to enjoy the substantial fee until the pursuer's death.

The view which I have expressed does not, however, afford a full solution of the question which is raised. The sealed envelope may not contain valid and effectual directions to the trustees in regard to the disposal of the estate after the pursuer's death. In that case there would be a resulting trust for the pursuer as heir-at-law, and the pursuer would, in that event be entitled to have the estate freed from the trust. The pursuer, therefore, has an interest to demand that the sealed envelope shall be opened now and its contents ascertained, and I think that it would be competent for the Court to order the envelope to be opened.

The endorsation upon the envelope is in the following terms—“The enclosed deed is not to take effect nor come into operation until after the death of my son John Edmond, and it would not be for his comfort or interest, or the advantage of others who may after my son's death have an interest, and I therefore enjoin my trustees and executors not to open the envelope, but to secure the deed to be strictly private in all its parts until my son's death.— Francis Edmond, 4th November 1891.”

Now, I do not regard that endorsation as of the nature of a testamentary writing. It has nothing to do with the disposal or management of the testator's estate, but is merely a direction to his trustees as to the time when they are to make public the contents of a certain deed which he has left.

I read the opening words of the endorsation, not as a declaration that the enclosed deed shall not take effect until the pursuer's death, but as a statement that as matter of fact it does not do so. That fact is narrated to explain how. consistently with the enclosed deed receiving full effect, it may be kept sealed up during the pursuer's life. The testator seems to me, in effect, to say that the envelope shall not be opened until it is necessary, in order to carry out his wishes, that its contents should be known. If, therefore, circumstances which the testator did not foresee render it necessary to ascertain the contents of the envelope, I think that it is competent to do so.

The pursuer, however, states in a very emphatic way that his desire is to carry out his father's wishes in every respect, and that the object of the present action is only to ascertain who is now the fiar of the estate, in order that it may be duly administered during his (the pursuer's) lifetime, without loss to himself or deterioration to the estate.

A finding, therefore, that the disposition conveys the fee of the estate to the trustees may serve the pursuer's purpose, and, accordingly, in the meantime, I propose to do no more than make a finding to that effect, and appoint the cause to be enrolled for further procedure.”

The pursuer reclaimed, and argued—(1) There was no conveyance of the fee of Kingswells which took effect either de presenti or a morte testatoris. Nothing was given till after the death of the liferenter. There was consequently now no disposal of the fee to them which was at present effectual to defeat the claim of the heir-at-law. This was not a testamentary deed, and there was therefore no presumption in favour of vesting a morte testatoris. (2) There was at the present time no ascertained fiar, for the conveyance was to the holders of certain offices at the date of the liferenter's death, and the persons who might hold these offices at that date could not be known till it arrived. There was no one who was entitled now in terms of the conveyance to take infeftment in fee. The fee was therefore not at present disposed of, and fell to the heir-at-law. (3) The doctrine of fiduciary fee was inapplicable. That doctrine only applied to the case of an estate being destined to a father in liferent allenarly, and to his children nascituri in fee. This was apparent from the history of the doctrine. See Newlands v. Newlands' Creditors, July 9, 1794, M. 4289. The case of Maxwell v. Logan, December 20, 1836, 15 S. 291, and 1st August 1839, Maclean & Rob. 790, did not really extend the rule. (4) Even if there was a valid conveyance of the fee to the Kingswells' trustees, there were no trust purposes for which they could hold it, and consequently there was a resulting trust for the heir-at-law. It was mere conjecture to say that the sealed envelope contained such purposes. The rule de non apparentibus et non existentibus eadem est

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ratio applied. The Kingswells' trustees were not entitled to demand the opening of the packet because they had not accepted office. (5) Even supposing that the packet contained trust purposes relating to Kingswells, they were of no effect, and could have no effect, because the endorsation upon the envelope provided as its leading direction that they were not to take effect till after John Edmond's death. Subject to such a qualification there could not be any valid trust purposes, and there could only be at most a resulting trust for the heir-at-law.

Argued for the Kingswells trustees—(1) There was a valid conveyance of the nominal fee in the lands of Kingswells as at Mr Francis Edmond's death which vested in these defenders a morte testator is, the beneficial enjoyment of the fee being postponed, as was necessarily the case, until after the liferenter's death. A conveyance of that kind did not cause intestacy as regards the fee, but on the contrary vested the fee in the disponees a morte testatoris— Watson's Trustees v. Hamilton, January 31, 1894, 21 R. 451, June 4, 1894, 21 R. (H.L.) 35; Turner v. Gaw, February 20, 1894, 21 R. 563, per Lord M'Laren at p. 567. This was plainly in its nature a testamentary deed, but if it was not, the alternative was not intestacy but vesting of the nominal fee in the trustees as at the date of the conveyance. Alternatively the pursuer was fiduciary fiar. That doctrine was not confined to cases of parent and child— Allardice v. Allardice, March 5, 1795, 3 Ross' Lead. Cas. (Land Rights) 655; Ferguson v. Ferguson, March 19, 1875, 2 R. 627; Cumstie v. Cumstie's Trustees, June 30, 1876, 3 R. 921, in which last case the fiduciary fee was for “heirs whomsoever.” In either of these views there was no conveyancing difficulty with regard to the fee of these lands. There was no doubt as to Mr Francis Edmond's intention. In his will he showed that he supposed himself to have disposed of the fee of Kingswells. (2) It was conceded that if there were no trust purposes, then there was no trust except for the heir-at-law. But that could not be assumed, and it was denied. Whatever might be the general rule, owing to the form of the pursuer's summons, the onus of proving that there were no trust purposes lay on the pursuer in this case, and he did not propose to attempt to prove that no trust purposes were in existence. Apart from that, however, these defenders averred and proposed to prove that there were trust purposes in the sealed document. They asked that the envelope should be opened by order of the Court. The pursuer had no right or title to resist this being done. The envelope did not belong to him, and it was not in his custody. Primarily, of course, the envelope was in the charge of the testamentary trustees, and they opposed its being opened, but surely it was not in accordance with their duty to insist on obedience to the terms of the docquet on the envelope with the effect of defeating the testator's intention and giving the fee to the heir-at-law. It was a somewhat curious way of regarding the testator's wishes to obey scrupulously an injunction which was obviously of secondary importance, and thereby to defeat his obvious intention to dispose of the fee. An injunction was less peremptory than a command, though more so than a wish, and if obedience to this injunction was inconsistent with giving effect to the testator's leading intention, the trustees were not bound, and indeed were not not entitled to regard it. This objection to the opening of the packet ought not therefore to receive effect. But apart from that, in view of their averment as to its contents, they were not entitled to its custody or to oppose its being opened, but were bound to hand it over to the Kingswells' trustees, who desired that it should be opened. It was proper that the Court should order the opening of the packet so that it might be proved that there were trust purposes as averred by these defenders. Their demand was simply that the deceased's repositories should be searched to see if he had left any trust directions under his hand. It was plain that the testator intended to dispose of the fee of Kingswells for trust purposes, and supposed that he had done so. His intention should receive effect, even if it involved disobedience to the injunction on the envelope. It was said, however, that even if this envelope contained trust purposes they were rendered of no effect by the terms of the docquet. But on that supposition the docquet and the trust purposes would have to be read together, and supposing the trust purposes to be in themselves valid and effectual (as was ex hypothesi the case), the Court would not readily nullify the document itself in obedience to a somewhat strained construction of the docquet. It was to be observed that what Mr Francis Edmond had kept secret was not the conveyance of the fee, which had been already effectually made by the disposition, but only the directions as to what the trustees were to do. The pursuer's argument on the effect of the docquet seemed really to depend on the validity of his argument as to the effect of the disposition, and if that argument were unsound, then the argument on the docquet was unsound also. It was plain that a testator might convey lands in liferent, say to his widow, and in fee to trustees for purposes to be declared by the liferentrix at any time during her lifetime. In such a case the nature of the trust purposes, if any, would not be known till her death. (3) The averments as to difficulties in the management of the estate were irrelevant, but in any view they were no greater than these which occurred in every case where a father had a liferent allenarly with a fiduciary fee for his children nascituri.

Argued for the defenders, the testamentary trustees—The packet ought not to be opened, and these defenders were bound to resist the demand to that effect, because the testator had directed that it should not be opened. This injunction was not contrary to law or public policy or to the real intention of the testator, and unless upon one or other of these grounds, the trustees

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ought not to be ordered, in defiance of the testator's direction, to give up the envelope for the purpose of being unsealed.

At advising—