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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Cunninghame, Esq., of Hensol v. Roderick McLeod, surviving Trustee appointed by the deceased Anne, Lady Ashburton [1846] UKHL 5_Bell_210 (13 August 1846)
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SCOTTISH_HoL_JURY_COURT
Page: 210↓
(1846) 5 Bell 210
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1846.
No. 13
v.
[
Heard
Subject_Deeds. — Writs. — Records. —
It is no objection to the validity of a deed, that within the six months allowed by the Statute 1685, cap. 38. after the deed had been given in to be recorded, and an extract of it had been issued by the keeper of the records, as if it had been recorded, but before it had been actually booked in the register, it had been borrowed up from the keeper of the register, and an error in its testing clause corrected by words introduced.
Subject_Revocation. — Onerous or Gratuitous —
Where the lands of a woman are, by the settlement upon her marriage, limited to the issue of the marriage, and failing such issue, to her “nearest heirs at law,” it is in the power of the woman after dissolution of the marriage, by divorce, without issue, to convey the lands away from her heirs at law, as not being parties having an onerous claim under the settlement.
Subject_Faculty. —
Found that a faculty, reserved in a marriage settlement which directed the trustees of the settlement to execute an entail of lands upon the issue male and female of the marriage, whom failing, to such persons and uses as should be named and appointed by the wife in any deed of settlement or writing executed by her during the subsistence of the marriage, or after its dissolution by the death of the husband, was well executed by an absolute disposition, not containing any reference to the faculty, and made after the dissolution of the marriage by the divorce of the husband.
On the 29th of June, 1826, Lady Ashburton made a trust disposition, whereby on the recital of a contemplated marriage between her and Ranald G. Macdonald, and of a contract of marriage between them, whereby Macdonald had renounced any claim for tocher and his jus mariti and right of courtesy, and
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“Providing further, as it is hereby declared, that if I shall happen to die before my said intended husband, it shall be lawful to me, by any deed of settlement, or by my last will and testament in writing, or by any codicil or codicils thereto, or any writing or writings of the nature of a will or codicil, to direct and appoint any sum or sums of money, not exceeding in whole the principal sum of ten thousand pounds sterling, to be levied or raised out of the trust-funds and estate hereby conveyed, and to be paid and applied to such person or persons, and to such intents and purposes as I shall think proper, and shall, in and by such deed of settlement, will, codicil, or writing, express or declare, and my said acting trustees or trustee for the time are hereby directed and required to levy and raise, and pay and apply the said sum accordingly, notwithstanding of any thing contained herein to the contrary. And further, it is hereby specially provided and declared, that it shall be lawful to, and in the power of my said acting trustees or trustee, and their or his aforesaid, and they or he are hereby authorized and directed, as soon as conveniently may be, to purchase at and for such price or prices as to them
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or him shall appear reasonable and proper, such part or parts of the estate of Arisaig, in the county of Inverness, including the mansion-house and grounds belonging to, and at present in the occupation of, the said Ranald George Macdonald, as my said trustees or trustee shall think proper; together also with one or more freehold qualifications entitling the holder to vote for a member of Parliament for the said county of Inverness: and in case of my said trustees or trustee being unable to conclude a bargain for such part or parts of the said estate of Arisaig, on such terms as they shall think reasonable, then it shall be lawful to them or him, and they or he are hereby authorized and directed, as soon thereafter as conveniently may be, to purchase at and for such price or prices as to the said trustees or trustee shall seem reasonable and proper, any other landed estate in Scotland that they may think preferable, and also one or more freehold qualifications entitling the holder to vote for a member of Parliament within the county or counties where the lands so to be purchased may be situated; and either in one purchase or in several purchases, and to levy and raise the money, which shall be wanted for making the said purchases respectively, by and out of the said trust-monies, stocks, funds, and securities, and to pay and apply the sum or sums of money so to be levied or raised in such purchase or purchases accordingly. But it is hereby expressly declared, that it shall not be obligatory upon my said trustees or trustee, or their and his aforesaid, to make any such purchase or purchases at and for any greater price or prices than they or he shall think reasonable: and further, it is hereby provided and declared that, upon the completion of the said purchase or purchases of the said landed estate in Scotland, the disposition or dispositions, or conveyances thereof, shall be taken to, and in favour of, my said trustees or trustee, and their or his aforesaid, as particularly before specified, in their character of trustees or Page: 213↓
trustee, to be held by them in trust, to pay and apply the rents, issues, and profits thereof to such person or persons and for such ends, uses, and purposes as I shall from time to time, notwithstanding my marriage, and whether I shall remain married or single, appoint, by any writing under my hand; but not so as to dispose of, or affect the same, or any part thereof, by any sale, mortgage, or otherwise in the way of anticipation; and failing such direction or appointment, the said rents, issues, and profits shall be paid by my said trustees or trustee into my own hands, for my sole and separate use and benefit, independently and exclusively of the said Ranald George Macdonald, or of any future husband after his decease, and without being in any way subject to the debts, claims, control, interference, or engagements jure mariti, or by right of courtesy or otherwise, or the debts present or future of the said Ranald George Macdonald, or of any future husband I may intermarry with, or to the diligence of their or either of their creditors; and my own receipt in writing, or the receipt of any person appointed by me from time to time, whether married or single, shall be sufficient and valid discharges for the same to my said trustees or trustee, and their or his aforesaid: and further, as soon as my said trustees or trustee shall have completed a proper feudal title in their persons to the said landed estate in Scotland, and freehold qualifications so to be purchased, it shall be incumbent upon, and I hereby authorize and require them to execute a deed or deeds of strict entail of the said landed estate and freehold qualifications, disponing and conveying the same after my decease (but always under and subject to all the clauses, prohibitory, irritant, and resolutive, necessary and accustomed, by the law of Scotland, according to the most approved styles of conveyancing, for constituting a perfect entail, in all points effectual, according to the act of the Scottish Parliament, passed in the year one thousand six hundred and eighty-five, chapter twenty-second,) Page: 214↓
to and in favour of the eldest son to be procreated of the said marriage between the said Ranald George Macdonald and me, and to the heirs whatsoever of the body of such eldest son.”
Then followed a series of substitutions, which closed with the following:
“And failing issue, male or female, of my said intended marriage, to such person or persons, or to such uses and purposes, as shall be named and appointed by me in any deed of settlement or other writing to be executed by me, either during the subsistence of my said intended marriage, or after its dissolution, by the decease of the said Ranald George Macdonald; whom all failing, to my own nearest heirs at law. And the said deed of entail shall contain all the clauses, prohibitory, irritant, and resolutive, usual and accustomed, by the law of Scotland as aforesaid, so as to make the same binding and effectual on the disponee or institute, and on all the heirs of entail, in terms of the said Act of Parliament one thousand six hundred and eighty-five, chapter twenty-second, before referred to. And it shall be incumbent on my said trustees or trustee to get the said deed of entail duly recorded, in terms of the said Act of Parliament. Which subjects before conveyed, with this right and conveyance thereof, I, the said Anne Selby, Lady Ashburton, bind and oblige myself and my aforesaids, to warrant to my said trustees or trustee and their aforesaids, and to their disponees or assignees at all hands and against all mortals, as law will.”
The trustees accepted of the trust put upon them by this deed, and, in the year 1829, purchased the lands of Arisaig, which they feudally vested in themselves by infeftment.
In the same year, 1829, the marriage between Lady Ashburton and Macdonald was dissolved by a decree of divorce obtained by her, without any issue having been born of the marriage.
On the 12th of July, 1833, Lady Ashburton sent to her
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“The property of Arisaig to be left absolutely to Lord Cranstoun, whom failing, the property to be sold, and out of the purchase-money is to be given, &c.:” then followed a variety of legacies: “I make my brother, John Cunninghame, and Lord Cranstoun, executors of my will. I reserve the right and power to change the will, should circumstances render it necessary,”
On the 24th of March, 1834, Lady Ashburton, who was then in Paris, wrote out, and signed and sealed in the presence of two witnesses, the following paper:
“The deed making out to put Lord Cranstoun in possession of Arisaig at my death, not having reached me to be signed by me, and witnessed by others, may cause a dispute. I here repeat, that I leave him that property; and, as I may now be in a dying state, I desire that this paper may be considered as my last will and testament, which is witnessed by James Elton, Esq., and Dr. Chermside, my physician.”
This paper her ladyship transmitted, on the 28th March, 1834, to her solicitor in London, inclosed in a letter in these terms:
“The inclosed was written by me at a time when I was doubtful whether I could live above a few hours. By mistake my maid gave me a large teaspoonful of laudanum instead of red lavender. I am very uneasy at the Scotch deed being delayed so long; and the paper I now send is to show what my intentions are, to enable them to be carried into execution, although the deed is not here. It may not be made out according to law, but my meaning cannot be misunderstood, I am still too unwell to leave Paris; but on Saturday or Sunday we hope to be at Fontainebleau, where we shall remain until we are told we can pass the Jura mountains.
After all the legacies are paid out of the funded property,
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what will the balance be which remains? My head is still very much confused, but I hope you will make out my meaning.”
On the 21st May, 1835, Lady Ashburton executed an absolute disposition as “heritable proprietrix of the lands of Arisaig,” in favour of James Lord Cranstoun, his heirs and assignees whomsoever, heritably and irredeemably, and obliged herself to procure herself duly infeft, and seised in the lands, and granted procuratory and precept for infefting the disponee in ordinary form. This deed made no reference in any part to the trust disposition of 1826, nor to any right existing in the trustees of that deed, nor to any power reserved to her by it. The testing clause of the disposition, as originally written, bore that it had been signed in presence of “David William Crammord,” as one of the instrumentary witnesses.
Lady Ashburton died in July 1835, being survived by Macdonald, her divorced husband, without having obtained from the trustees of the deed of 1826, any conveyance to herself of the lands of Arisaig, or in any other way procured herself to be infeft in these lands.
The disposition in favour of Lord Cranstoun was given in to the keeper of the register at Edinburgh, upon the 8th day of August, 1835, in order to its being recorded, and upon the 11th of that month an extract of the deed was given out by the keeper, as if it had been recorded. In the month of January 1836, the solicitor in Edinburgh of Lord Cranstoun, discovered that the true name of the instrumentary witness who has been referred to, was Crammond, not Crammord. In consequence, he returned to the keeper of the register, the extract of the disposition which he had obtained, and borrowed from him the disposition itself, which had not as yet been entered upon the books of the register, and transmitted it to London, to the solicitor in whose chambers the deed had been prepared and executed, where the following addition to the testing clause
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“The name of the last subscribing witness being David William Crammond, the letter r next the letter d in his last name, as originally written, being a clerical error, and these fifty-nine words, counting each of the said letters r and d as a word in addition to the testing clause, being written by the said William Clarke.”
Afterwards the deed was returned to the record on the 4th February, 1836. An extract of the deed, which was libelled upon in the action to be presently mentioned, bore that the deed had been given in to be recorded on the 8th of August, 1835; but it contained the addition to the testing clause, which has been mentioned; whether this was the original extract with this addition made to it, or a new extract issued after the return of the deed to the register, did not appear.
The respondent, as the surviving trustee under the deed of 1826, brought an action against the appellant, as the heir-at-law of Lady Ashburton, setting forth the deeds which have been detailed, that he had been required by Lord Cranstoun, to convey to him the lands of Arisaig, but that he could not safely comply with that demand without the consent of the appellant, or the decree of the Court; and that the appellant had refused to give this consent. The summons therefore concluded, that it should be found that “in consequence of the dissolution of the foresaid marriage between the said Ranald George Macdonald and the said Anne Selby, Lady Ashburton, by the foresaid decree of divorce, and there never having been any issue of the said marriage, there was then, and also at the time of the execution of the foresaid disposition by the said Lady Ashburton, in favour of the said James Lord Cranstoun, no person interested in the foresaid lands, superiorities and others, purchased as aforesaid by the pursuers and the said William Groom, as trustees foresaid, excepting the said Anne Selby, Lady Ashburton, herself, and that she
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In the course of this action, the respondent produced the holograph writings by Lady Ashburton, of 12th July, 1833, and 24th March, 1834, upon which he pleaded that even if the disposition of May, 1835, were invalid, these writings excluded the appellant from the succession to Arisaig, and gave Lord Cranstoun a good title to have the lands conveyed to him.
The appellant pleaded in defence to the action:
“I. As the funds under the management of the pursuers were conveyed to them in trust for certain purposes, and, among others, for the purpose of being invested in lands to be strictly entailed on the heirs of the marriage, and on the failure of them, and of any other parties to be named by Lady Ashburton,
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II. As the only powers reserved by Lady Ashburton over the fee of the property conveyed to the pursuers, were to dispose a portion of it to the extent of 10,000 l., and to nominate and appoint other heirs of entail, besides those named in the trust-deed, during the subsistence of the marriage, or after its dissolution by the death of Clanranald, the disposition in favour of Lord Cranstoun is inoperative and ineffectual; 1st, Inasmuch as it is not a nomination of heirs under the entail, but a disposition in fee-simple; and, 2nd, Inasmuch as it was not executed during the subsistence of the marriage, or after its dissolution by the death of Clanranald.
III. Even supposing that Lady Ashburton had the power of revoking the trust-deed, the disposition to Lord Cranstoun is ineffectual, because it contains no express revocation of that deed, and because it proceeds upon the assumption, contrary to the fact, that Lady Ashburton was heritable proprietrix, and invested with the full fee of the lands.
IV. The disposition is further inoperative and ineffectual as a conveyance of heritage, inasmuch as it is not duly tested in terms of law.
V. The addition made to the testing clause after the granter's death, and after the deed had been recorded, is a vitiation affecting the whole deed, and destroying its authenticity.
VI. The holograph writings of Lady Ashburton are not effectual to convey the estate of Arisaig to Lord Cranstoun away from the defender as heir-at-law; nor do they constitute any such obligation on him as heir-at-law to convey the property to Lord Cranstoun, as admits of being enforced by adjudication in implement, or otherwise.
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The disposition subsequently granted appears indeed to be at variance with these holograph instructions.”
On the 6th February, 1840, the Lord Ordinary, ( Jeffrey,) pronounced the following interlocutor, accompanied by the subjoined note:—
“The Lord Ordinary, having heard the counsel for the parties on the closed record, and whole process, and made avizandum, Finds, 1mo. That it is not competent for the pursuers, under the present summons, which rests the claim of Lord Cranstoun to the lands in dispute entirely upon Lady Ashburton's disposition thereof in his favour, of 21st May, 1835, to found upon the holograph writings cited and referred to in Articles 6, 7, 8, and 9 of the Condescendence for the pursuers, as separate instructions to her trustees for the settlement of these lands; and that all their averments as to the purport and object of those writings are therefore irrelevant and inadmissible in the present process: Finds, 2do. That the said disposition of 21st May, 1835, was a probative writ when produced in judgment by the said pursuers in this process, and must now be admitted, and receive effect, as the genuine deed of the said Lady Ashburton; and repels the defender's objection to the sufficiency or regularity of its execution accordingly; Finds, 3tio. That the trust-disposition and assignation executed by Lady Ashburton on 29th June, 1826, in contemplation of her marriage with Ranald George Macdonald, can be considered as onerous or obligatory on the granter, only in so far as it contained provisions or destinations of heritage in favour of the issue of the said marriage; but that, quoad ultra, it was purely gratuitous, and liable, sua natura, to alteration or revocation by the granter, especially by acts done or instruments executed after the dissolution of the said marriage without issue, and when it was consequently certain that the whole obligatory provisions had been finally frustrated, and never could come into operation: Finds 4to.
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F. Jeffrey.”
“ Note.—The grounds of the first finding are sufficiently apparent, on comparing the summons and the record. The second, as to the defect in the testing clause, and the efficacy of the correction resorted to, admits of more question. The Lord Ordinary is not quite satisfied that the variance in the spelling of the witness's name is so great as to be fatal, if not corrected. But he does not rest on this point. He thinks the case of the Bank of Scotland against Telfer's creditors, 17th February, 1790, a precise authority for holding, (however perilous and questionable, upon principle, the doctrine may appear,) that such errors may be corrected ex intervallo, in the way that was here done, and where much more had happened since the actual signature and execution of the deed than can be alleged in this case. In the case of Brown, (11th March, 1809,) it was shown, in the course of the argument, that more had been done with the deed before any proposal was made to supply its defects, than merely giving it
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With regard to the other and more general findings, as to the construction of the deeds, and the powers of the granter, there is not much to be added to the grounds set forth in the interlocutor, which contains all that it is thought necessary to express as to the principles on which the judgment is rested. The authorities chiefly relied on are those of Gordon and Harper, 4th December, 1821, and of Hyslop and Maxwell, 11th February, 1834, (12 Shaw, 413,) both of which seem to be cases a fortiori to the present, inasmuch as the properties there held to be effectually conveyed, by direct dispositions executed by parties not actually vested in the fee thereof, did not originally belong in substance and effect, (as is the case here,) to the parties so disponing, but had been derived from other persons, by whose act, (and not by their own,) a beneficial interest in them had been acquired. Both these cases were very deliberately considered; and it is not thought that their authority, or application to the questions now at issue, can be much affected by Lord Gifford's reversal of the judgment
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The Lord Ordinary has always understood, that where a trust comes to subsist only for the interest and behoof of a single person, and his heirs or assigns, and especially where that person is the truster himself, by whose mere will and gratuitous act it was quoad hoc created, and is subsisting, it is completely in the power of such person or truster to revoke the trust, and to call on the trustees to denude in his own favour, or in that of any person he may choose to designate. This was admitted, upon all hands, to be the rule in the remarkable case of Torry Anderson, 2d June, 1837, (15 Sh.
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A very desperate argument was raised by the defender on the circumstance, that, in describing the deed by which Lady Ashburton reserves power to herself (on failure of issue) to
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F. J.”
The appellant reclaimed against this interlocutor, and (on the 26th of June, 1840,) the Court ordered the disposition of 1835 to be brought into Court, and remitted to the deputy clerk register to report “as to the practice that obtains in recording and booking deeds presented for registration in the books of Council and Session, and of granting extracts thereof, whether within, or after, the expiry of six months from the date of presentment; and as to the practice of withdrawing deeds from the record, within six months from the date of presentment, under the provisions in the Act of Parliament 1685, cap. 38; and, further, to examine and report what appears in the registers and other books of the office, relative to the registration of the above-mentioned disposition, dated May 21, 1835, the said report to be lodged quam primum, and thereafter printed and boxed by the parties.”
The deputy clerk returned the following answer to this remit:
“I may begin with stating, that prior to the Act of Parliament 1685, concerning the registration of writs in the books of Council and Session, I am not aware that there existed any positive regulation as to the period from the date of presentment, within which deeds were to be booked or engrossed ad longum in the registers kept for that purpose. Neither does it appear from any document now remaining, whether there then obtained any customary practice of withdrawing
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from the keepers of the record, deeds that had been presented for registration; but that such a practice may have existed, similar in effect to what was afterward sanctioned and regulated by statute, seems probable. There seems, however, to be no doubt that, from time immemorial, it has been the usual and ordinary practice to issue to the ‘ parties ingivers,’ formal extracts of deeds, with all the requisite clauses for execution, without awaiting their regular entry in the registers of the Court, and bearing the official attestation of having been ‘extracted furth of the records of the Court of Session.’ By the Act of Parliament 1685, which placed the business of this department on a regular footing, it was, inter alia, “appointed, that in each of the three offices for the registration of writs, there should be two minute-books kept, in one whereof there should be set down the title of writs given in to be registrat, the name of the giver in, and the date of the ingiving, and to be subscribed by the clerk or his substitute.”—“That all writs so given in should be booked within the space of one year after the ingiving; and if any party, or one employed by him, should desire up a writ given in, within six months after its ingiving, then the title of the writ, the name of the party, and the date of both ingiving and outgiving of the said writ, should be inserted in the other minute-book, and be subscribed by the receiver thereof:” “that as the one minute-book doth charge, so the other minute-book might discharge the clerk of such writs;”—and it was further appointed, “that when these registers are to be given in to the general register house, the two minute-books were likewise to be given in with them, subscribed by the clerk; and the depute appointed by the Lord Register for keeping of the said registers, should subscribe other doubles of the said minute-books, to be kept by the clerks, for the information of the lieges in their offices.”
These provisions of the Act were ordained to take effect
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from the 1st day of August in that year; and, accordingly, from that date, minute-books, specifying the titles of the deeds given in for registration, together with the other particulars required by the statute, (somewhat more fully than formerly,) were begun to be framed. On the margins of these minute-books there occur entries in these terms, ‘Principal writ out,’ or ‘Principal writ delivered up;’ and in these cases it has been found that the deed referred to never has been booked; implying of course that the parties ingivers had availed themselves of the liberty recognised and sanctioned by the statute. That in these cases some more formal document must have been taken by the keepers for their exoneration, cannot be doubted; but it does not appear, after a careful search, that any minute-books of the kind prescribed for this purpose by the Act of Parliament had ever been framed; none certainly of that kind now remain among the public records. The substitute actually employed, and adopted probably from the former practice, appears to have been, to take an acknowledgment from the party ingiver of the redelivery of the deed, and a declaration that the extract given out at the time of presentment had been delivered up, in order to be cancelled. Of this mode thus adopted, the earliest instance now to be found on the books of the office is in the year 1707; it is the first of a series of similar entries written on the blank leaves of the minute-books of ingivings, and responde books of the different offices, preserved in the General Register House. It is in these terms:— 28 th Nov. 1707.—Taken out of the register by me, James Ross, writer in Edinburgh, the principal bond granted by Charles Menzies, W.S., &c., to Christian Blackwood, &c., dated 22d February, 1707, presented by me to be registered 25th November, 1707. The extract being returned to be cancelled.
(Signed) Ja. Ross.”
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“The following may be given as another example of the same kind:—
“31 st March, 1741.—Received out of the register by me, writer in Edinburgh, discharge and obligation by Sir James Mackenzie, to Sir William Dick of Prestonfield, dated 12th November, 1740 years, registered 12th November, 1740, and is now taken out by me, ingiver thereof, having delivered the extract to be cancelled.
(Signed) Rodk. Mackenzie.”
“Many entries of a similar tenor occur in the minute-books and responde books of the different offices. And in all such cases, it appears that the deeds had been withdrawn within the period when they would have fallen to be booked, and of course they are not to be found in the existing registers, at least as of the date of the original ingiving. The same deeds might of course be afterwards brought back at any time, and again presented for registration; and of this proceeding the instances are by no means very uncommon.
Thus, on March 9, 1819, a discharge of inhibition by the assignees of Atkins and Sons, &c., to Stenhouse Wood, dated 28th October and 7th November, 1818, was given in for registration, and thereafter given up on receipt; but again presented for registration on the 22nd of March, 1819; and the deed is accordingly registered of that latter date.
Again, on the 13th of March, 1819, a power of attorney by Andrew Douglas M'Culloch, in Edinburgh, to John Graham, dated 8th March, 1818, was presented for registration, given up on receipt, and again registered on the 21st of April, 1819.
These, and many other cases, apparently of the same kind, appear to have been conducted in strict conformity with the intendment of the Act of Parliament; nor has there been found any instance of a deed withdrawn or given up after it
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There is, however, another class of cases of by no means unfrequent occurrence, where, within six months after the date of presentment, deeds are ‘borrowed’ by the ingivers upon receipt, avowedly in the view of being returned to the keepers, and entered on the register as of the date of their original ingiving. Of the receipts taking in such cases, the following are examples:—
“Edinburgh, 31 st December, 1767.—Borrowed up by me, clerk to Thomas Innes, writer to the signet, principal discharge and renunciation, the Royal Bank of Scotland to Sir James Innes, of Innes, dated the 18th day of Decr. 1767? and regd. in the books of Council and Session the 23d day of the said month and year, to be returned on demand. Prin. returned.”
Thomas Riddoch.”
“ Edinburgh, 10 th July, 1822.—Borrowed by me, W.S., submission and decreet-arbitral, Jean and Alison Ponton, &c. and John Dawson, at Dalmeny, registered 9th current, and in the meantime have deposited the extract.
(Signed) Walter Ferrier.”
“ Edinburgh, 31 st July, 1822.—Borrowed by me, W.S., ratification and bond of corroboration, Chas. Halkett Craigie, Esq., to Miss Hannah Halkett Craigie, and others, dated 28th March, and registered 18th June last; and, in the meantime, I have deposited the extract.
(Signed) Alex. Monypenny.”
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“ Edinburgh, 20th March, 1824.—Borrowed by me, Alexander M'Craw, clerk to Alexander Young, W.S. prob. copy heritable bond by Alexander Murray, Esq. of Broughton, to the trustees of the Westminster Co., for 34,000 l., dated 26th Jany. 1824, and recorded 1st March following.
(Signed) For Alexr. Young.
Alex. M'Craw.”
“In these, and many similar cases, the receipts have been cancelled. The principal writs are preserved among the public records, and they are found to have been booked in the register as of the date of their original presentment. How long this practice may have prevailed, I have not ascertained. It cannot, perhaps, be condemned as in violation of the Act 1685; at the same time, it must be obvious that it derives no direct sanction from the provisions and regulations embodied in that statute.
By your interlocutory order above referred to, your lordships have further directed me to report upon what appears in the registers and other books of the office, relative to the registration of the disposition by the late Lady Ashburton in favour of Lord Cranstoun, dated May 21, 1835, and said to be recorded in the books of Council and Session, on the 8th day of August, 1835.
In the minute-book of deeds presented for registration, there is the following entry, under the date of August 8, 1835:—
‘Dispn. by Lady Ashburton to Lord Cranstoun, 21st May, 1835.’
And in the responde book of the office there is an entry under the date of August 11, 1835, which shows that an extract of the disposition in question was then given out.
Among the receipts for writs delivered up or borrowed, contained in the responde book, there is the following:—
“25 th January, 1836. Borrowed by me, W.S., principal disposition by the late Right Honourable Anne Selby, Lady
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(Signed) Aw. Howden.”
To this is annexed the following note:—
“4 th February, 1836. Prinl. returned to the record by
A. H.”
There is no subsequent entry in the minute-book of ingivings; nor any entry in the responde book, to indicate that any other, or different, extract had been given out by the keeper; and the deed is entered on the record, as of the date of the original presentment, on the 8th of August, 1835.”
In consequence of suggestions by the parties, the deputy clerk register, at a subsequent period, made an additional report. To the suggestions of the appellant, he made the following answer:—
1. That second extracts are occasionally demanded by the party ingiver of the original deed, as well as by other parties, within the period of six months after the presentment of the deed, and prior to its engrossment in the register; but in such cases, if the original deed were demanded by the ingiver, in the view either of being again returned and deposited, or of being entirely withdrawn, the keepers would hold themselves entitled and bound to withhold the deed until every extract, whether in the hands of the ingiver or in those of third parties, had been restored.
2. It is not consistent with the knowledge and experience of the present keepers, nor is there any evidence on the books of the office, that in any case where the original deed had been borrowed by the ingiver, and not yet returned, a second or other extract of that deed had been demanded or furnished to any third party.
3. In any case where an original deed had been borrowed
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4, and 5. On the circumstances of the present case, the present keepers can afford no explanation beyond what appears on the books of the office, as quoted in my former report; but, on the facts assumed in these questions, there has been a manifest violation of the rule by which the present keepers hold themselves to be bound. Mr. Thomas Peat, the principal keeper, by whom the extract, dated August 8, 1835, was given, died in the month of September, 1836.”
And to the suggestion of the respondents, these answers:—
“1. That agreeably to the uniform course of practice, the deed in question originally presented for registration on the 8th day of August, 1835, could not have been booked on the 25th day of January, 1836, when the principal deed was borrowed up, nor on the 4th day of February, 1836, when the deed appears to have been returned, nor at any time prior to the 8th day of that month, when the period of six months from the date of its presentment terminated.
2. In all ordinary cases, even where a deed has been borrowed and returned, it is recorded as of the date of the original presentment; but, independently of what appears or is alleged as to the circumstances of the present case, on which I have nothing further to report, there is no evidence to be found, on the books of the office, of any deed, borrowed, altered, and returned, having been recorded on the date of its
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3. I have been informed by the present keepers, that, within their knowledge, one or two instances have occurred, where a deed has been borrowed for a temporary purpose, and retained beyond the period of the six months from the date of presentment; and, in such cases, the record has been framed from the authenticated official extract left with the keepers until the original is returned.”
The Court ordered minutes of debate to be laid before the other Judges of the Court for their opinion, which, upon advising these papers, was delivered in these terms:
“We are of opinion that it was competent for the parties who first sent the disposition libelled on to the register, to borrow or demand back the same within six months.
It is indisputable in the practice of the register, that the enactment of the Act 1685, cap. 38, is still in force, in so far as it allows parties who have lodged writs for registration to get them back within a specified period. The report of the depute clerk register conclusively shows that that privilege has been acted on in many instances down to the present time.
There is no doubt that this privilege is restrained by another special enactment in the statute, which provides, that “no writ given in, shall be taken out, after the same is booked;” but we conceive that there was no room for the application of that prohibition in the present case. It only comprehended cases where the writs have been actually entered in the register book before they are demanded back. In such cases, the privilege of getting back the writ is taken away, probably to prevent any contradiction or discrepancy between the record and the principal writ, by alterations or additions which might be made, if the latter were lent up, after it had been engrossed ad longum in the record.
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But we apprehend that the issuing of an extract, or certified copy of the deed before booking, is not sufficient to bring the case within the prohibition of the statute. Some inconvenience or hazard may indeed be found to arise from the issuing of such extracts, before actual registration; and if any evil is experienced, an appropriate remedy will be provided by the legislature, or by a general regulation to be made by the Court, as possessing a power of superintendence and control over the public records, in reference to future cases. In the meanwhile it rather appears that the custom of the keepers of the register, when a writ is demanded back within six months, to call in and get back, before returning the writ, all extract-copies which may have been issued since ingiving, is a precaution that may be sufficient to prevent any abuse from the practice now referred to. The report of the depute clerk register shows that the extract-copy first issued, was demanded and given back in the present instance to the keeper, before the principal writ was returned. And, therefore, under all the circumstances of the case, we think that the interlocutor of the Lord Ordinary on this point is well founded, and ought to be adhered to.
J. Cuninghame.
C. Hope.
Ad. Gillies.
J. H. Mackenzie.
John Fullerton.
F. Jeffrey.
H. Cockburn.
John A. Murray.”
“I am of opinion, that it was competent, under the Statute 1685, c. 38, for the party ingiver, to take up the deed libelled from the register, at any time within the space of six months after its ingiving. But it appears to me, that this was competent
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I cannot regard the borrowing that took place in the present case as a taking up of the deed in this statutory sense. Neither the register nor the clerk was ‘ discharged of the writ’ by such a borrowing. The receipt granted to the clerk, on the contrary, implied an obligation to return the writ, as one, which, constructively at least, was still in manibus of the clerk, as a registered document. When the deed was returned, it was accordingly dealt with by the clerk,—not as a deed given in of new to the register,—but as a deed already registered, and after a temporary borrowing, ‘ returned to the record;’ the matter remaining upon the footing, and of the date, of the original registration.
Having this view of the case, I do not concur in Lord' Cuninghame's opinion, that it was competent for the parties to borrow' the deed, “and to return it with the corrected testing clause at the period that the disposition in the present instance was returned.” It appears to me, on the contrary, that any alteration upon the tenor of the disposition, while it remained borrowed up, on receipt, was just as much a tampering with the integrity of the record, as if the party had obtained access to the writ in publica custodia within the register office, and had there effected the alteration. And, therefore, as there is nothing, in my opinion, of which the Court ought to entertain a greater jealousy, or which they ought more readily or more anxiously to extend their arm to prevent, than an attempt to interfere with the integrity of written instruments, more especially while lying in publica custodia, so I think it would be encouraging a dangerous
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Whether the pursuers,—had they, in terms of the statute, got up the deed from the register, and so brought it once more as a private document, under their own proper control,—would have been justified in making the change upon the testing clause, which they have made;—what ought to be the legal effect of such change,—or whether the misnomer of the witness, as originally written, would have been fatal, supposing no change to have taken place;—are all of them questions upon which, as I understand, no answer is now desired. But, be the case in these respects as it may, I am humbly of opinion, that the pursuers should, as matters now stand, be kept to the shape of the deed as it existed, when presented for registration on the 8th August, 1835.
Besides, the summons libels the deed as “a disposition dated 21st May, and recorded in the books of our Council and Session, 8 th August, both in the year 1835;” and it is impossible, I think, with reference to a libel so laid, to take into consideration any other form of the deed, than what existed at the date of recording thus libelled. The alteration upon the testing clause which has given rise to the present discussion, was confessedly not made till January 1836. And while the settled practice, as reported by the depute clerk register, is, that where a deed is got up from the register, and is afterwards returned, “varied in any respect from the tenor of the extract,” the altered deed “should be recorded anew, as of the date of the second presentment,” there was here no registration of posterior date to 8th August, 1835, so as in this way to meet the change effected on the tenor of the deed.
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Upon the whole, there having been here—on the one hand, by the private party, what I must consider an improper tampering with a document belonging to, though, for the moment, borrowed out of the public records,—and on the other upon the part of the record keeper, what the deputy clerk register expressly reports to be “a manifest violation of the rule by which the present keepers hold themselves to be bound,”—I am of opinion that, in the circumstances of this case, the deed libelled was not competently taken out of the register, in the only sense recognised by the statute; that the alteration made upon it, while constructione juris yet in the register, must be wholly disregarded as an illegal proceeding; and, finally, that the deed must therefore be dealt with, in the present discussion, as if no alteration had been made, and as if it had stood at this moment precisely as it did when originally given in for registration on 8th August, 1835. J. Ivory.”
Upon receiving these opinions, the Court, on the 20th July, 1841, adhered to the interlocutor of the Lord Ordinary.
The appeal was against these interlocutors, and two others not necessary to be noticed.
Sir F. Kelly and Mr. Anderson for the Appellant.—The disposition of 1835, as the testing clause stood originally, was altogether void. Archibald v. Marshall, Mor. 16907. Douglas and Co. v. Clerk, Mor. 16908. This, indeed, was assumed by the Judges below, who dealt only with the attempt to cure the defect in it. However regular the proceeding of borrowing up the deed from the record might have been, so far as the records were concerned, the alteration of the deed after the death of the granter, was altogether incompetent. In the Bank of Scotland v. Telfer's Creditors, Mor. 1690, an objection, that the testing clause had been added to, was
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If the deed was void at the death of the granter, nothing that was done after that event could alter its condition. The lands then vested in the appellant as the heir-at-law of Lady Ashburton, and nothing done afterwards could divest them, still less anything done by the grantee in the deed. For anything known, the granter may intentionally have allowed the deed to remain with the error in the testing clause uncorrected, and any evidence dehors the deed itself to prove the contrary, is altogether inadmissible. Cleland v. Cleland, 1 B. & M. 254.
But if the deed could be altered after the death of the granter, it could not be so after it had been recorded; and it was recorded, so soon as the keeper had issued an extract. Thenceforth, whatever may have been the practice of the office, it was incompetent for the keeper to deliver it out again. Registration is voluntary; and the Statute 1685 allows the party giving in the deed for registration, to alter his mind, and withdraw the deed altogether, at any time, within six months, so long as the deed has not actually entered the record: but it in no way sanctions the notion of the deed being borrowed up in order to its being altered—it may be in order to its being vitiated—and being then returned for recording as was done in this case. If that practice were to be sanctioned, it is difficult to conceive the consequences; in the present case, the extract
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In another view, however competently the alteration might have been made after the death of the granter, or after registration, it amounted to an alteration in substantialibus, and so vitiated the deed, Stair IV. 42. 19; Walker v. Gibson, 2 Dow. 270, where the vitiation was the writing of the instrumentary witness's name upon an erasure.
II. The deed of 1826 was, for onerous causes, and in its nature irrevocable. Not only did Macdonald dispense with any tocher, but he renounced his jus mariti and right of curtesy; and in consideration of this, it was agreed that the estate should be settled on the issue of the marriage, “and other ways.” It is not denied, that if there had been issue of the marriage, the deed would have been irrevocable. It is only because the marriage was dissolved, without issue, that it has been supposed to be revocable, but in its terms it is not confined to the duration of the marriage. It makes provision for the event of the dissolution by the death of either of the parties, by a continuance of its operation in the form of a strict entail upon substitutes beyond the issue of the marriage. The non-existence of issue, and the dissolution of the marriage, cannot alter the nature of the deed from onerous to gratuitous; the only effect is to advance the rights of those ultimately entitled to take. The settlement having been made before marriage, the substitutions are effectual beyond the immediate subjects of the marriage, and cannot be defeated, according to a rule established in England, and recognized in Scotland. Goring v. Nash, 3 Atk. 188, note to Sanders' edit.
The deed, which is one inter vivos, divests the granter of her estate, and while it reserves to her an equivalent to a liferent in
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Moreover, so soon as the lands purchased under the deed of 1826 were vested in trustees, they were withdrawn from the power of the granter until the purposes of the trust were answered, which they are not, while the remote substitutions, after the issue of the marriage, are unsatisfied, Turnbull v. Tawse, 1 Wil. & Sh, 80; Spence v. Ross, 3 Wil. & Sh. 380; and Smitton v. Todd, 2 Bell & Mur. 225. Not only so, but the trustees were required to entail the lands strictly upon the series of substitutes pointed out. As this ought to have been done by the trustees, it must be held as having been done; and had it been done, it would not have been in the power of the granter to do anything whereby the rights of the substitutes could be injured or defeated. Schaw v. Schaw, Robertson's App. p. 203; Gordon v. Dewar, Mor. 15579.
III. Not only was the deed of 1826, from its nature and terms, irrevocable, but no right of property was ever vested in Lady Ashburton, which could entitle her to execute the disposition of 1835. If the lands had been vested in her, a disposition with a final substitution in favour of “her heirs,” might have given her the fee absolute on failure of the prior substitutions;
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IV. If the deed of 1826 was revocable, it has not in fact been revoked. The deed of 1835 is confessedly, by the terms of the summons, not sufficient per se to operate a conveyance of Arisaig, without a conveyance from the trustees; it would be wholly inoperative, in the events that have happened; but such a conveyance was not contemplated or intended by Lady Ashburton. Instead of revoking the deed of 1826, she intended it to remain as the title of a conveyance from the trustees to her, which in its turn should support her deed of 1835, in favour of the respondent, a deed which she had granted as “heritable proprietrix;” but until she obtained that conveyance from the trustees in her own favour, her conveyance to the respondent, though clearly enough expressed in intention perhaps, was not completed in act.
V. The deed of 1835 was neither in form nor effect an exercise of the power reserved by the deed of 1826. That power was to name or appoint persons or uses under the entail, to be executed by the trustees, and that by deed of settlement or other writing, to be executed during the subsistence of the marriage, or after its dissolution, by the death of Macdonald. The persons or the uses, therefore, were to be subject to the entail; but the deed of 1835 is not a nomination at all, either of persons or uses; it is a conveyance in fee-simple absolute; and it was not executed, either during the subsistence of the marriage, or after its dissolution by the death of Macdonald, but after its dissolution by his divorce. It neither refers to the power, a reference which can be dispensed with only when the form of exercise prescribed has been observed; nor does it observe that form. But in order to make a deed in exercise of a power effectual, it is indispensable that every requisite prescribed by the power be minutely observed. Breadalbane's Trustees v. Breadalbane, 2 D. B. & M. 915: Borthwick v. Hospital,
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The Lord Advocate, Mr. Turner, and Mr. G. L. Russell, for the Respondent.—I. The Statute 1685 requires that a deed given in to be registered shall be booked within a year after, but it allows the party giving it in, the privilege of withdrawing it at any time within six months after “its ingiving,” under the limitation that no writ “given in shall be taken out after the same is booked.” It is ascertained by the keepers of the register, that in the present instance the deed was taken out within the six months, and that at the time it was given out, it had not been entered in the books of the register. What was done, therefore, was within the provisions of the statute. With regard to the constructive registration contended for by the appellant, in the fact of an extract having been given out as if the deed had been recorded, there is no authority in the statute for it; and if it were adopted, the effect would be to nullify the registration of all the deeds which have been given out in this way, and which, according to the report of the keeper of the register, are very numerous. Though it be true that the extract, issued after the deed had been returned, should have borne a new date of presentment, that will not vitiate the deed itself, which remains unaffected.
If the proceedings in regard to the taking of the deed out of the record was regular, there was nothing in the error in the instrumentary witness' name to affect the validity of the deed. In Stewart v. Stewart, the instrumentary witnesses signed by the names of “Moir” and “Garrock,” but in the testing clause their names were filled in as “Moor” and “Garvock,” o being substituted in the one case for i, and in the other v for r; discrepancies
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II. The deed of 1826 was no further onerous than as regarded the issue of the marriage between Lady Ashburton and Macdonald. The interests of the contracting parties and of their issue by the marriage, were the only objects contemplated by it, and so soon as the marriage was dissolved by the divorce of Macdonald without issue of the marriage having been born, the objects of the settlement were at an end. Anderson v. Buchanan, 15 S. & D. 1073. Craigie v. Gordon, 15 S. & D. 1157. This being the case, Lady Ashburton by the divorce was restored to all the rights of an unmarried woman, and had full power to re-settle the lands in any way she might feel disposed.
III. But even if this were doubtful, the deed of 1826 gave her ladyship express power, failing issue of the marriage—an event which happened—to appoint the lands to such persons and upon such uses as she might select. The disposition of 1835, though not in form or by reference, an execution of that power, is nevertheless effectual for that purpose, if allowed its own natural operation; and that, by the law of Scotland, is all that is required in order to the execution of a power. It is not necessary, in order to the effectual execution of a power, either that the deed should refer to the power, or that it should be shown that the maker had the power in view;—it is sufficient if the deed giving it its ordinary legal effect, will work an execution. Cameron v. Mackie, 7 Wil. & Sh. 106.
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Even adopting the stricter principles of the law of England upon this subject, there is sufficient upon the face of the disposition of 1835, to make it an execution of the power in the deed of 1826, for it conveys by name the lands which are the subject of the power and cannot take effect without executing the power.
Upon this statement, upon the communication which we
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It would have required a very much stronger exception than that respectable authority of Lord Ivory furnishes. It would have required a much stronger view of the case than we have been able to take. It would have required a much greater weight of argument, as well as of authority, upon a question which is one fully as much of practice as of principle, to have entitled your lordships, in the face of the all but unanimous opinion of those learned persons presiding in that Court, including in the majority one of the most eminent conveyancers on that bench. It would have required, I say, a much greater weight of authority, and stronger force of argument, than has been urged against this decision, to have entitled your lordships, in the face of that weight of authority, upon a point of practice as much as of principle of the law of conveyancing in Scotland, to have decided in favour of the appellant and against the respondent.
Then, my Lords, the other points which have not occupied so much of our attention, were argued chiefly by the respondent at the bar, whom we had absolved from the argument of the other point. The other points related to two matters. The first was, whether there was a power in the deed of 1826, under which Lady Ashburton could make the settlement on behalf of the present Lord Cranstoun; and, secondly, whether that power had been executed by her.
With respect to the first of those, I am clearly of the
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There was a case referred to by Lord Jeffrey, ( Turnbull v. Tawse,) and which I recollect very well in this House. It was decided by Lord Gifford, (sitting here in 1823 with Lord Eldon,) the then Master of the Rolls and Speaker of this House for the time being, reversing the decision of the Court of Session. My Lords, I do not go along—and it is principally for that reason I mention that I cannot go along—with an observation of Lord Jeffrey; and it is the only part of the learned and able note, (as everything that comes from him is sure to be learned and able,) that I do not go along with. It is an observation in which he objects to, or casts some doubt upon, the justice of that decision in this House. His lordship is pleased to say, that he cannot help entertaining doubts of the soundness of the views on which that reversal seems to have proceeded. Now that is very possible—my Lord Jeffrey may entertain, if he chooses, those doubts—but he goes on to say, that he is far from feeling any assurance that the Court, (that is, the Court of Session,) would hold themselves bound by its authority in any similar case.
Now a Judge in the Court below may well entertain doubts of the soundness of a judgment in the Court above, reversing his decision. We allow him the full benefit of those doubts, but he must not act upon those doubts. He may say that it is only simile not idem; but he says he is far from feeling any assurance that the Court of Session would hold themselves bound by the authority of the House of Lords in any similar case. My Lords, I feel a very confident assurance on the part of the Court of Session, as well as of this House, that they
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But although I differ in that respect from Lord Jeffrey, I entirely agree with him when he goes on to say that there is no similarity or application whatever of the case of Turnbull v. Tawse, to the present case; and if I were to choose words in which to state my opinion of the dissimilarity of the two cases, and therefore of the non-application of that case of Turnbull v. Tawse, which I hold to be law and without doubt, (there alone differing from Lord Jeffrey,) if I were required to find words to express that difference, I should take Lord Jeffrey's own most clear, and lucid, and accurate statement of the difference. “In that situation,” he says, “and in implement of this natural and legal obligation, the mother conveys the fee of certain properties to trustees for them, (then all existing and severally named in the settlement,) under the single burden of certain specific and limited debts, and upon this conveyance the trustees are infeft, for behoof (in so far as concerned the fee) of the said children, exclusively and without any reservation on her part of power, either to revoke or alter generally or to interpose other ‘persons or purposes’ between them and the fee so ultimately destined. In the present case, on the other hand, the destination on which the defender,” (that is, Lord Cranstoun,) “relies, is, neither to a child or descendant of the granter, nor to any one having any natural or legal claim upon her; nor, finally, to any one definite person known or contemplated at the time as an existing individual, but merely in the most general terms, and ultimo loco in the event of no special disposition being made, to whomever might happen in that event to hold the character of her nearest heir-at-law.” And then observe what follows, and then there is besides,
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My Lords, the next point, and the only one that remains to deal with is, whether or not there has been an execution of the power. Now it is not necessary by the law of Scotland in executing a power or a reserved faculty, (what we call a power here,) that reference should be made in the instrument purporting to execute that power, to the instrument creating the power. It is not even necessary in the law of England that there should be in the instrument executing the power a direct and specific reference to the power, or a statement by the donee of the power, armed with it and assuming to execute it, that he does this act in execution of the power. But the law of Scotland materially differs from the law of England in this respect. It is rather contrary in its principle, than similar to the law of England. In the law of England, I, who set up an execution of a power by a certain act done, am bound to show that the act was done in execution of the power, though I am not bound to show it in that particular way of proving it by a direct reference to the instrument creating the power in the act executing the power. But in the law of Scotland it is rather the reverse; the proof is thrown upon the other side. It shall be held to be an execution of the power, unless it appears not to be an execution of the power. So entirely different are the principles in this respect upon which the two systems of jurisprudence
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Now, even according to this principle of the law of England, if you apply even this principle, which is, as I said before, totally different in this respect from the law of Scotland, which throws the proof upon the party denying, whereas here it is thrown upon the party affirming and setting up the execution, you will find that there is in this case, as has been most justly argued on behalf of the respondent, quite sufficient to have brought the case within the principle even of the English law, with respect to the execution of the power. My Lords, in this case it is quite clear, from the nature of the instrument itself, that this was and could not be other than an execution of the power.
My Lords, upon these grounds, therefore, I entirely go along with the decision of the Court below. It was very fit that time should be taken to consider, especially the first matter respecting the testing clause. I am clearly of opinion, that that decision is well founded; and that with this single exception of the doubts cast upon the judgment of this House in 1823, in Turnbull v. Tawse—with which doubts I do not at all concur—with that single exception, the case has been most fully and satisfactorily argued in the judgment of Lord Jeffrey, to which the Court of Session entirely adhered. The only point which seems to have been referred to the consulted Judges, was that with respect to the testing clause. The other points appear never to have raised any doubt whatever in their lordships' mind; for all the Judges, except Lord Ivory, agreed in the judgment.
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The title against which the appellant contends, is founded upon a disposition by Lady Ashburton, dated 21st May, 1835, by which, describing herself as heritable proprietrix of the lands after mentioned, (being the estate of Arisaig in question in this cause,) she gave, granted, alienated, and disponed, conveyed and made over from her, and her heirs-at-law, and her successors whatsoever, to and in favour of Lord Cranstoun, his heirs and assigns whomsoever, heritably and irredeemably, the lands in question, by name, together with all right, title, interest, claim of right, property and possession, petitory or possessory, which she had, or could pretend thereto. The only question which could arise upon this instrument would be, first:—Had Lady Ashburton the power of disposition over the lands in question? and secondly:—Was the instrument in question capable of passing to Lord Cranstoun the interest in the property which it was Lady Ashburton's wish to bestow upon him. This must depend upon the provisions of the marriage-settlement of Lady Ashburton, dated 29th June, 1826, by which the trustees were authorized and directed to purchase with certain trust-funds the lands in question, and to procure themselves to be feudally invested in such lands, and thereupon, after providing for the payment of the income to her for life, to execute a deed or deeds of strict entail, disponing and conveying the same after her decease, but always under and subject to all clauses, prohibitory, irritant and resolutive, necessary and accustomed by the law of Scotland, for constituting a perfect entail, to and in favour of the children of the marriage, male and female, and failing such issue, “to such person or persons, or to such uses and purposes as shall be named and appointed by me, in any deed of settlement or other writing, to be executed by me, either during the subsistence
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The appellant is the heir-at-law, who contends that such estate and interest as by this deed was reserved to the disposal of Lady Ashburton in the event of there being no children of the marriage, was not effectually given to Lord Cranstoun by the disposition of 21st May, 1835. The ingenuity which has been exercised in support of this proposition has totally failed in raising any doubt in my mind. The entail to be created was, I think, confined to the issue of the marriage, upon failure of which the dominion over the property as to persons, uses and purposes, was to belong without restriction to Lady Ashburton, and upon failure of all persons so to be named by her, the property was to go to her own nearest heirs-at-law. There being a failure of issue of the marriage, Lady Ashburton by the deed of 21st May, 1835, has given this property to Lord Cranstoun, his heirs and assigns whomsoever. The property was in trustees, but the beneficial interest was in Lady Ashburton; and why is not her disposition competent to pass it to Lord Cranstoun? She had reserved to herself a power of appointment to the property, but in default of appointment it was to go to her heir-at-law. The deed of 21st May, 1835, was quite sufficient to execute the power, because in Scotland it is not necessary that the power should be referred to, and the property is named. If she had no estate or interest, but only a power, then clearly the power was well executed, and if she had a disposable estate and interest, then the deed was sufficient to pass it; and because the deed might operate either way, an argument was raised that it did not operate in any way.
There does not appear to be any ground for the argument, that by the law of Scotland, such an ultimate destination as this to the heir-at-law of the truster, gives an interest to whomsoever may answer that description, which the truster cannot defeat
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The only question upon which I entertained any doubt, was respecting the testing clause. As to the others, I really think that they were hardly arguable.
With respect to the execution of the power, though, according to the law of England, it must appear from the deed, which is said to be an execution of the power, that it is an execution of the power, and that the donee of the power had the power in his mind at the time he executed it, by the law of Scotland it is quite enough that the power would authorize the act that is done; and it would be wholly immaterial if it were to appear, in the most satisfactory manner, that the donee of the power had not the power at all in his recollection, and was acting under some other supposed authority.
With respect to the testing clause I must own I was very much shaken indeed by the argument we heard, because, looking at the Statute of 1685, it is very difficult to say that this mode of proceeding, if it were res integra, would be justified by it. But when, upon inquiry, we find that it is the invariable and unquestionable practice in Scotland so to alter the testing clause in a deed, and that it has been so far back as can be traced, to hold that the execution of the deed has failed, on account of a supposed irregularity, would lead to most mischievous
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Now, not only from the inquiries that were made during the argument, but by inquiries instituted very properly by my noble and learned friend who sits by me, after the argument, closed, it appears that this has been the invariable, constant, and unquestioned usage in Scotland.
I am, therefore, clearly of opinion that validity cannot be given to this objection. That is the only point which I ever entertained any doubt upon, and I, therefore, entirely concur in the opinion that this interlocutor should be affirmed.
It is ordered and adjudged, That the said petition and appeal be, and is hereby, dismissed this House, and that the said interlocutors therein complained of be, and the same are, hereby affirmed. And it is further ordered, That the appellant do pay, or cause to be paid, to the said respondent the costs incurred in respect of the said appeal, the amount thereof to be certified by the clerk assistant. And it is also further ordered, That unless the costs certified as aforesaid shall be paid to the party entitled to the same, within one calendar month from the date of the certificate thereof, the cause shall be, and is hereby, remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the bills during the vacation, to issue such summary process or diligence for the recovery of such costs, as shall be lawful and necessary.
Solicitors: G. and T. W. Webster — Warry, Agents.