Scottish Court of Session Decisions

The trustees acting under a deed of trust dated 20th, and registered in the Books of Council and Session 23rd August 1907, granted by Norman Stewart Bertram, engineer, then residing at 71 West Cumberland Street, Glasgow, and afterwards in London, first parties; the said Norman Stewart Bertram, second party; David Stanley Bertram, the second party's brother, third party; Dorys Jessie Bertram, the second party's step-sister, and her mother Mrs Hannah Isabella Chambers or Bertram, as her guardian and administrator-in-law, fourth parties, brought a Special Case with regard to the revocability of the said deed of trust.

The deed of trust provided—“I, Norman Stewart Bertram, engineer, seventy-one West Cumberland Street, Glasgow, considering that I have now received payment of my share of the estate falling to me under the antenuptial contract of marriage between my father and mother, amounting to over three thousand pounds, and that I consider it proper and prudent that a portion of the funds so received should be put in trust for the purposes after mentioned, therefore I do hereby assign, dispone, convey, and make over to and in favor of … as trustees … [ certain securities] … making together at their present market value the sum of One thousand and seventy-four pounds, one shilling and elevenpence inclusive: But that in trust only for the ends, uses, and purposes, and with and under the powers, conditions, and declarations after mentioned:—(First) My trustees shall pay the expenses of executing this trust; (Second) My trustees shall during my lifetime pay to me during the whole days of my life the free annual income of the said trust estate before conveyed …; (Third) My trustees shall on my death pay to my widow, should I be married and be survived by her, so long as she shall remain my widow, the free annual income of the said trust estate before conveyed as aforesaid, declaring that the said provisions in favour of me and of my widow, shall be for my and her respective liferent alimentary use allenarly, and shall not be affectable by my or her debts or deeds, or by the diligence of my or her creditors; (Fourth) My trustees shall hold the capital of the said trust estate for behoof of my lawful issue, divisible between or amongst them, if more than one, in such shares and proportions as I shall appoint by any writing under my hand, and failing such apportionment then equally between or amongst such children; (Fifth) In the event of there being no lawful issue who shall acquire a vested right to the capital of the said trust estate under the provisions hereinafter written, my trustees, upon the death of the survivor of me and my widow, shall assign, dispone, convey and make over (First) one-half of the capital of the said trust estate to my brother, the said David Stanley Bertram, and to his heirs and assignees whomsoever; and (Second) the other one-half to Dorys Jessie Bertram, my step-sister, and to her heirs and assignees whomsoever.… [ ] …”

The case stated—“5. The second party at the date of the said deed of trust was and he is still unmarried.

6. The second party has no estate apart from his interest in the estate conveyed by him to the first parties. He is anxious to raise some capital in order to start in business. He therefore desires to revoke the said deed of trust, and has called upon the first parties, upon his so revoking, to denude themselves of the trust thereby created.

7. The first parties maintain that the said deed is irrevocable, and that they are bound to preserve the trust estate for behoof of the second party and of all other parties who may be beneficially interested in its provisions. The first parties also maintain that the second party cannot assign his alimentary liferent interest under the said deed.… The third and fourth parties adopt the contentions of the first parties.

8. The second party maintains that the said deed of trust is revocable by him, and that he is entitled to revoke it accordingly, and that on his executing a deed of revocation in common form the first parties are bound to denude themselves of the office of trustees conferred upon them by the said deed of trust and to reconvey the trust estate to the second party. The second party also maintains that in any event the liferent conferred upon him by the said deed of trust is assignable by him.…”

The questions of law were, inter alia—“(1) Is the said deed of trust revocable by the second party to the extent and effect of entitling him upon his executing a deed of revocation to demand that the first parties should denude of the trust thereby created and reconvey the said trust estate to the second party? (2) Is the alimentary liferent interest of the second party in the income of the trust estate conveyed by the said deed of trust assignable?”

Argued for the first, third, and fourth parties—This deed being in no sense a deed for administrative purposes or of a testamentary character, was irrevocable— Allan v. Kerr, October 21, 1869, 8 Macph. 34, 7 S.L. R. 9; Robertson v. Robertson's Trustees, June 7, 1892, 19 R. 849, 29 S.L.R. 752; Shedden v. Shedden's Trustees, November 29, 1895, 23 R. 228, 33 S.L.R. 154; Lyon v. Lyon's Trustees, March 12, 1901, 3 F. 653, 38 S.L.R. 568; Walker v. Amey, January 11, 1906, 8 F. 376, 43 S.L.R. 242; cp. Byres' Trustees v. Gemmell, December 20, 1895, 23 R. 332, 33 S.L.R. 236. Whether the granter had children or not did not matter. No circumstance outside the deed could be noticed. The effect and operation thereof must be construed as at the time it was granted— Mackie v. Gloag's Trustees, March 6, 1884, 11 R. (H.L.) 10, L.-C. Selborne at p. 15, Lord Watson at p. 17, 21 S.L.R. 465, at pp. 467 and 468; and where an interest was given to children the deed was irrevocable— Mackie, cit. sup.; Middleton's Trustees v. Middleton, 1909 S.C. 67, 46 S.L.R. 48. It was questionable whether a party having an alimentary right could assign it— Cuthbert v. Cuthbert's Trustees, 1908 S.C. 967, 45 S.L.R. 760. There was no case where a deed was in part revocable, and in part irrevocable. Ersk. Inst. iii. 5, 2, and Hughes v. Edwards, July 25, 1892, 19 R. (H.L.) 33, 29 S.L.R. 911, were also referred to.

Argued for the second party—Any declaration by the granter making the income alimentary could be recalled by him, as it was his own deed. The trustees had not observed the distinction between the case where a man was dealing with his own estate and where it was not so— Lord Ruthven v. Drummond, 1908 S.C. 1154, 45 S.L.R. 901. Further, there was a presumption that if one part of a deed was revocable, the whole deed was revocable. No doubt the general law was as laid down in the cases quoted by the trustees, but the particular terms of this particular deed showed that it was intended for the purpose of administration. It was a question of intention in every case. The trustees must show an intention to create an immediate beneficial interest in favour of somebody else. The case would be different if the granter had children; they would have a, jus quœsitum, but the destination-over to the brother and step-sister was purely testamentary. There was nothing to show that the deed was contractual. Its purpose was to provide for the wife and children of the granter in the event of his entering into a marriage— Watt v. Watson, January 16, 1897, 24 R. 330, 34 S.L.R. 267. In any case the granter was entitled to use the income as a fund of credit.