and may pay as a constant rent yeerlie heireftir the particulare soumes of money No. 36. underwrittene as is speciallie and particularlie after mentionat viz: M'Neill's The landes of glenmoir glenbeig barbe Duag tulliche ower and nether Camess Dec. 9, 1872. wt the pertinentis of personage and great teynd the noumber of twentie thrie Trustees v. bellis meall, and for vicarage and small teyndes yroif threttie pundis money." Campbell. Then follows the ground of judgment-"Because the foirsaides personage and great teyndes have beine rentalled as is befoir spei't and the samen rental in use to be payed yeirlie attor the space of fourtie yeiris immediately last bypast qh we find to be att the availl." Here it is important to observe that the report is more exact than was required by the Act 1633, c. 19, since it states that the preceding valuation was not merely near the avail but "att the availl." Then comes the course of procedure-" and becaus the said Archbald Lord Lorne patroun of the said Kirk of Kilmelphoirt and the said Mr Colline Campbell p'soun and vicar yrof and titular of thrie q'rteris of the teyndis of the samen appertaining to the said laick patronage and tacksmane and possessor of the fourt q'rter of the samen teyndes, called the bishop's quarter, and the saids personnes heritoris above nameit compeirit all personallie befoir us quha and ilk ane of thame co'descendeit and aggreit to ye foirsaids rentalled teynd bollis for the saides personage and great teyndes except the sd. Neill Campbell of Kendmoir and because we took trew tryall and informao'une anent the sowmes gerss and holding of the saides landis and alse because the saides heritouris were lawlie summond to have co'peirit befoire us at ane certaine day to have hard and seine the saids vicarage and small teyndes valued in maner abovewrettine." Now, we have here represented, in the first place, the heritors, except Mr Neil Campbell, all consenting to this system of valuation, and in the second place, the parson of the parish, who is titular of the teinds, except one-fourth thereof, which belongs to his bishop. Now, it is said that because the bishop is not called and does not appear the titularity is not fully represented, and that without the positive consent of everybody interested as titular this system of valuation is not justified by the terms of the report. Now, I think it would be sufficient for the decision of this case to rest on Harrison Ainslie and Company, which is a judgment directly in point, as between an heritor and the present titular of his parish. We there held that this was a good valuation by rental bolls. But I am unwilling to seem to attach too great importance to that decision, although I believe there are no less than four Judges present who concurred in it. I think it was well decided. It seems to me that the titularity of this parish was sufficiently represented. The interest of the minister as parson was precisely of the same kind as that of the bishop quoad his fourth part. It is not to be supposed that there was a division of the lands among the titulars; they really held a pro indiviso right to the teinds of the whole parish; their rights were identical except in extent, for the parson here was interested as titular to the extent of three-fourths, while the bishop had the same interest in only one-fourth, so that it was not unreasonable in the Subcommissioners being satisfied with the parson's consent, particularly as he in point of fact possessed and drew the teind belonging to the bishop in the shape of rental bolls, and was himself quite satisfied. I think it would be unfortunate if, this report having been acted on for so many years, the bishop should not be now held to have acquiesced. The other Judges concurred. THE following interlocutor was pronounced:-" Sustain the reasons of reduction, and decern in the reduction accordingly: Further, in the approbation, find, decern, and declare in terms of the conclusions of the libel in all respects, and find expenses due to the pursuer, occasioned by the defences, from the date thereof down to the 28th October last: Appoint an account thereof to be lodged, and remit," &c. T. & R. B. RANKEN, W.S.-M'NEILL & SIME, W.S.-Agents No. 37. Dec. 12, 1872. Allan's Trustees v. Allan and Others. 2D DIVISION. R. HUGH ALLAN AND OTHERS (James Allan's Trustees), First Parties.- JANET ALLAN AND OTHERS, Second Parties.-Horn. Succession-Legacy-Trust.-A testator, in his settlement, directed his trus tees to divide and pay over the fee of the residue of his estate to and among his whole children, including his daughters, "declaring that the provisions therein made in favour of females shall be purely alimentary to them, and not alienable or assignable, and shall be exclusive of the jus mariti and right of administration” of husbands, and not affectable by their own or such husbands' debts or deeds. Held that as there was a clear direction to the trustees to pay to the beneficiaries who were alone interested, and as the Court could not consistently therewith create a trust, which was the only mode of rendering the daughters' provisions inalienable, the daughters were entitled to receive payment on their own receipts; but that the receipts should bear exclusion of the jus mariti and right of administration. JAMES ALLAN, sometime manager of Govan Colliery, Glasgow, died on the 12th February 1861, leaving a trust-disposition and settlement, dated 30th December 1854, whereby he conveyed his whole estate, heritable and moveable, to the first parties and others in trust for the purposes therein mentioned. By the second trust-purpose the truster directed his trustees to hold and apply the residue of his trust-estate for the liferent use of Mary Watson or Allan, his spouse,-" And, in the third place, I direct and appoint my said trustees, upon the decease of the said Mary Watson or Allan, to divide and pay over the fee of the said residue to and among the whole of my children who may survive me, and the issue of such of them as may predecease leaving issue, including among them my granddaughter, Mary Jane Watson Michie, share and share alike, the issue in each case taking the share which their respective parents would have received, equally among them, when more than one, payable, the shares of the sons, on their attaining majority, and of the daughters and granddaughters on their attaining that age, or being married, whichever of these events shall first happen. .; declaring that the provisions herein made in favour of females shall be purely alimentary to them, not alienable or assignable, and shall be exclusive of the jus mariti and right of administration of any husband they or either of them have or may have, and shall not be affectable by their own or such husband's debts or deeds, or the diligence of their own or his creditors, all which are hereby excluded and debarred; and declaring that the receipts of such females, without the concurrence of their husbands, shall be sufficient for their said provisions." The truster's widow died on 23d October 1871, and a question having arisen between Mr Allan's trustees and his three daughters, two of whom were married, as to the import of the said third clause in Mr Allan's settlement, a special case was presented for the opinion and judgment of the Court, upon, inter alia, the following questions:-"Does the trustsettlement of Mr James Allan impose upon his trustees, the first parties, the duty of continuing their possession of that part of the residue of the trust-estate which is destined to the truster's daughters during their lives respectively? or, Is it competent to the first parties to discharge themselves of their trust by assigning shares of the trust-funds and estate to the truster's daughters, parties of the second part, respectively, by a deed of assignation containing a declaration to the effect that the estate assigned is alimentary, and held exclusive of the jus mariti and right of administration in terms of the foresaid provision of Mr Allan's trustsettlement; or, Are the truster's daughters, parties of the second part, entitled to payment or assignation of their shares respectively simpliciter, No. 37. by the parties of the first part?" Dec. 12, 1872. Argued for the trustees, the first parties;-This case was ruled by that of Lady Massy. The direction to pay did not necessarily mean to pay in tees v. Allan cash; in Scotland, as in England, a trust was the only means of protect- and Others. ing a wife's separate estate from alienation or diligence. Further, the Argued for the daughters, the second parties;-The trustees were bound to divide and pay as directed by the trust-deed. declaration that the fund should be alimentary was ineffectual. At advising, LORD JUSTICE-CLERK.-The question in this case is divided into two parts. The first raises the point, whether the trust settlement imposes on the trustees the duty of continuing to act, in respect of this provision to the truster's daughters being qualified with certain conditions. It is, I think, conceded by all concerned that it does not. The second point raised is, whether the trustees can discharge themselves by paying or assigning to the beneficiaries, taking discharges from them containing a declaration of the conditions under which the provisions were left by the truster. The clause in the trust-settlement is in some respects peculiar as regards the provisions to the truster's daughters. Having in the third purpose directed his trustees "to divide and pay over" the fee of the residue to and among his whole children, including his daughters, the truster afterwards added this clause, -"And declaring that the provisions herein made in favour of females shall be purely alimentary to them, not alienable or assignable, and shall be exclusive of the jus mariti and right of administration of any husband they or either of them have or may have, and shall not be affectable by their own or such husbands' debts or deeds, or the diligence of their own or his creditors, all which are hereby excluded and debarred." I think that is a clear instruction to the trustees, first, to pay; and, second, to take a receipt from the beneficiaries for the whole capital sum of their provisions; and that being the case, the question is, under what conditions this payment is to be made and receipt given. Now, the fund is declared alimentary and inalienable, and if that had been consistent with the other direction to pay over I do not say but that the Court might have taken steps to enforce the truster's intention. If this condition had related to a sum payable annually it would perhaps have been proper that the Court should exercise its equitable jurisdiction for the purpose of carrying into effect such an intention. But in the present case I do not think this is practicable. The testator has attempted to do two inconsistent things. He has ordered his trustees to pay over, while he has endeavoured to limit the full right of property in the payees, and that without a trust, and without creating a separate or resulting right in any one else. The case of Lady Massy was quite different. There a separate right of credit was created in the issue of Lady Massy. Here there is nothing of the kind. The two provisions are inconsistent one with the other, and therefore the beneficiaries are entitled to simple payment without the conditions to which I have referred. But the exclusion of the jus mariti is a different matter. I think that may be excluded by a truster, and in any receipt to be taken this exclusion should be expressed. What effect that exclusion may have I do not say, but I can see that some effect it may have, and I therefore think that a clause to this effect should be inserted in the receipts. LORD COWAN.-This is a very delicate question indeed. Mr Bell, in his Commentaries, and other writers, lay it down that effectual protection for a fund left 1 Supra, p. 173. 21 Bell's Com. 128 (124, 7th ed.); Gowans, March 9, 1849, 11 D. 1028. 3 White and Tudor, L. C. in Eq. (4th ed.), i. 491, 493; Newlands v. Paynter, 1839, 10 Sim. 377; Lewin on Trusts (5th ed.), 553; Sarel, (1864), 28 Jur. 876. 4 * Renniev. Ritchie, 4 Bell, Ap. 244-5 (L. Cottenham); 2 M'Laren on Wills, 66. No. 37. Dec. 12, 1872. Allan's Trustees v. Allan and Others. No. 38. Dec. 13, 1872. Earl of Glas by a father to his children can only be obtained by means of a trust; and the question here raised comes in effect to be whether we are to create a trust in order to carry out the conditions which Mr Allan annexed to his daughters' provisions. I am not aware of the Court having ever exercised such power. I think we are not entitled to authorise the trustees to do otherwise than the testator has directed, which is to pay the money directly to the beneficiaries. There is no ulterior destination, as there was in Lady Massy's case, which requires to be protected. The declaration that the funds, when paid over to the daughter, should be inalienable, is quite impossible of being carried into operation. It cannot be regarded as of any legal effect, unless under the protection of a trust, which is not created by this deed, and which the Court cannot call into exist ence. I am not, however, satisfied that in the narrative of the receipt to be granted to the trustees there should not appear the declaration that the funds are declared alimentary. In many settlements funds are declared to be such, so far, at least, as regards annuities, and funds which are only available in the form of yearly proceeds; and the declaration, though probably inept as regards the principal, may have effect as regards the yearly produce. I quite agree with your Lordship that the exclusion of the jus muriti and right of administration inust be introduced into the receipt. LORD BENHOLME and LORD NEAVES Concurred. THE COURT found " .. that the trustees of the said James Allan, the first parties, are entitled and bound to make payment to the testator's daughters, parties of the second part, of their shares of the trust-estate on their own receipt, containing a clause excluding the jus mariti and right of administration of their respective husbands," &c. JOHN GALLETLY, S.S.C.-MILLAR, ALLARDICE, & ROBSON, W.S.—Agents. JAMES HOPE, Trustee under the Trust-Disposition of the late George The Right Hon. GEORGE FREDERICK ROSSE, Earl of Glasgow.-Shand. gow's Trustee The Right Hon. JONATHAN PEEL AND ANOTHER, Trustees of the deceased James Earl of Glasgow.-Sol.-Gen. Clark-Marshall. v. Earl of Glasgow, &c. 1ST DIVISION. B. Marriage-Contract.-A husband in his antenuptial marriage-contract disponed lands in favour of himself and the heirs to be procreated of his body, and his or their assignees. Held that the heir of the marriage had a protected right of succession, which his father was not entitled to defeat gratuitously. Marriage-Contract-General Settlement-Approbate and Reprobate-Negative Prescription.-A father executed a trust-deed for payment of certain debts and regulating his succession in fraudem of his antenuptial marriage-contract, and to the prejudice of the heir of the marriage, and afterwards another trustdeed, the two forming together a complete settlement of his whole estate, herit able and moveable. The heir made up a title under the marriage-contract, and under it possessed the lands contained in the first trust-deed, and took benefit under the second deed, but in ignorance of the existence of the first trust-deed. Held, that his trustees and executors were not barred by the negative prescription from challenging the earlier deed, but were entitled to elect either to abide by his approbation of his father's settlement, or to renounce and restore the benefit he had taken, and challenge the first deed. IN 1788 George Earl of Glasgow and Lady Augusta Hay entered into an antenuptial contract of marriage, to which the Earl's mother, Elizabeth Rosse, Countess of Glasgow, heiress of entail in possession of the lands and estate of Hawkhead, was a party. By the contract of marriage the said Countess and Earl George, on the narrative that the lands Earl of Glas were destined by the existing deed of entail (which was defective) to No. 38. Earl George and the heirs whatsoever of his body, ratified, approved, and confirmed the substitution of heirs contained in the entail and after in- Dec. 13, 1872. vestitures, in so far as the heirs and children of the intended marriage gow's Trustee should have interest therein, and bound themselves that neither they nor v. Earl of either of them should at any time thereafter do anything by which the Glasgow, &c. course of succession might be altered, or the heirs or children to be procreated of the marriage prejudged or disappointed thereof. But power was reserved to Earl George, at any time after the succession of the estate of Hawkhead should open to him by the decease of the Countess, his mother, to entail the same of new without consent of the heirs or children of the intended marriage, provided that the order and course of succession settled upon them should not be thereby interrupted or disappointed. This reserved power was afterwards exercised by Earl George by a deed of entail executed in 1819, and recorded in the Register of Tailzies after his death. The marriage-contract settled not only the lands of Hawkhead, but, in contemplation of the marriage, conveyed a number of other lands held in fee-simple by Earl George "to and in favours of himself" (Earl George) " and the heirs whatsomever to be procreated of his body, and his or their assignees, whom failing, to Lady Elizabeth Boyle," &c. In 1825 George Earl of Glasgow executed a trust-disposition, in the narrative of which he set forth as the consideration that he stood bound in sundry obligations for money borrowed for the use of his eldest son, James Lord Kelburne, the sums being therein specified. He therefore disponed to trustees the lands of Thirdpart, and the lands of Baidland and Brodochlie in Ayrshire, and the lands of Stanlie in Renfrewshire, the last mentioned being part of the estate of Hawkhead, as therein particularly described, to be held for the following purposes:1. That the trustees, out of the rents, after paying public burdens, should keep down the interests of the various debts for which the Earl should be bound for his eldest son, and, if necessary, should borrow money and grant new obligations; 2. that so soon as a proper sale could be effected they should sell as much of the lands as would satisfy the said debts and obligations; and 3. that after fulfilling the said purposes they should be bound to denude of any residue of the said lands and others which still remain, to and in favour of his eldest son, or heir of entail of the estate of Hawkhead for the time, under all the conditions, restrictions, and declarations of the then existing entail of the said lands and estate of Hawkhead. And the granter recommended them, in the first place, to sell Thirdpart, Haining, Baidland, and others in Ayrshire, and thereafter, if these should not be sufficient for the purposes above mentioned, to dispose of such parts of the lands of Stanlie as might appear to them to be least detrimental to the said estate of Hawkhead. He reserved power to alter or revoke, and to sell, burden, or otherwise dispose of the lands at pleasure, and declared that the deed should be effectual, though undelivered at his death. The trustees were infeft, but never entered into possession of the said lands. And by a deed of explanation and codicil in 1830 Earl George bound the next heir of entail of Hawkhead to pay to the foresaid trustees the sum of £10,000 as trustees for behoof of his younger children, and directed that so long as his said eldest son should pay the interest of said debts and provisions regularly the trustees should not be entitled to enter into possession of the lands, and to that effect the operative powers of the said trusts were declared to be conditionally suspended. |