United Kingdom House of Lords Decisions

Lord St. Leonards.—My Lords, this a question of conveyancing, merely applicable to Scotland. The positive rule is, that if there be a power to revoke, and that power is exercised on deathbed, the revocation is a good one. At the same time the law of Scotland, or its form of conveyancing, denies to the same instrument the power of creating any new estates, ¹ or even the same estates which were in the original instrument.

Now in this particular case there was an original instrument with all the prohibitory clauses —with irritant and resolutive clauses, and all proper fences. After the granter's own estate and the heirs of his own body had ceased, he reserved the power of nomination, and he exercised that power of nomination in a way which is free from all objection. The way in which the case has been argued at the bar is, not that there was any objection to the deed of nomination, but that the subsequent revocation altered the character of the estates which had been so introduced by the nomination, and that those estates could not have been so introduced originally under the original deed.

Now the simple question is—whether, under this power of revocation, this gentleman did or did not create any new estates? That he had the power to revoke all the estates if he thought proper, nobody disputes. That he had the power to revoke all the prohibitory, irritant, and resolutive clauses, nobody will dispute. He might have revoked the whole; and if he had done so, then, of course, the authorities would have compelled your Lordships to decide that he could not create any new estates, or not even the same estates, according to some of the cases, by a deathbed disposition. But the gentleman who prepared this instrument seems to me to have been rather too astute in the practice of conveyancing for the appellants, for, instead of taking that mode which would have been fatal to the disposition he was making, he very acutely left the estates precisely as he found them in the original settlement, aided by the deed of nomination. Taking those deeds both together as constituting the settlement, he does most cautiously revoke all the prohibitory, irritant, and resolutive clauses, and all the fetters; in short, he removes the fetters, but leaves the estate. Where is the objection to that? He does not attempt to create any estates. He leaves the estates. But then the appellants say he has altered the character of the estates. My Lords, he has not altered the character of the estates, except in this way, that he has removed the fetters, which he had a perfect right to remove. Nobody disputes his right to remove the fetters, and nobody can dispute it. Then the estates remain; and the estates were to go according to their destination. But they may be alienated and taken in a different way, no doubt. Why? Because the fetters have been removed. But he had a right to remove the fetters; and the estates, which are now perfect, existing under these two original instruments not revoked, will take effect under those deeds, and not in any manner whatever by force of the deathbed disposition. The deathbed disposition was good to remove the fetters, and it was inoperative with regard to the estates created.

My Lords, I think the point lies in a nutshell. It is perfectly clear that it admits of no doubt. In my apprehension it is a mere question of conveyancing, as understood in Scotland. I think the deed is regular, and is not touched by any of the authorities; and therefore I move your Lordships that the interlocutors of the Court below be affirmed, with costs.