Judgment:
The
Lord Ordinary (Kinloch) pronounced an interlocutor, finding “that the raisers, the trustees of the deceased Robert Ker of Argrennan, are bound to execute a deed of conveyance in favour of Robert Ker junior, now of Argrennan, the eldest son of the said deceased Robert Ker, or of the claimant Walter Justice, as his assignee, as shall be required of them by the said Walter Justice, of the liferent right and interest in the lands of Argrennan, and other subjects, which, by prior interlocutors in the cause, has been found to pertain to the said Robert Ker junior: But this always subject to the burden and fulfilment of the trust-purposes of the disposition in favour of the said raisers, so far as the same are yet unfulfilled, and are preferable to the right of the said Robert Ker junior.”
The trustees reclaimed.
Crichton for reclaimer.
Pattison and
Macdonald for respondents.
At advising—
Lord Curriehill—This is a question arising in a multiplepoinding. The fund
in medio in that action consists of the trust estate of the late Mr Ker of Argrennan, and the competition has arisen as to the portion of the estate which the testator left to his eldest son, but which was subjected to certain conditions by a codicil. There has been a great deal of discussion in this case already. Robert Ker junior, before this right had opened to him, had conveyed it in favour of Mr Justice. The first question was as to the limitation by the trustees of the right, which had originally been constituted in favour of the eldest son, to a liferent. It was finally decided that that limitation was effectual. Then came the competition between the assignee of the eldest son, Mr Justice, and the Caledonian Railway Company, and the marriage contract trustees, as to the limited right remaining to Robert Ker junior, after that limitation. On the 13th January 1866, the Lord Ordinary pronounced an interlocutor preferring the assignee, and that judgment was adhered to, so that it is now settled that these assignees of Robert Ker junior are entitled to the emoluments of the trust estate provided to the oldest son. But another claim is made under the claim lodged for Mr Justice, a claim upon the trustees in whom the fee of the estate is still vested, to grant a deed of conveyance in favour of these assignees of a real right to the liferent. What is meant by that is, that the assignee insists upon a deed under which he could be infeft in the liferent of the estate. The Lord Ordinary has pronounced this interlocutor, finding that the trustees are bound to execute the conveyance sought, and that interlocutor is reclaimed against. I confess I should like to have seen what kind of disposition it is which is demanded, under which the reclaimers could be infeft in Robert Ker's right of liferent in the lands of Argrennan. I have some difficulty in seeing how such a deed could be framed. A consideration of that difficulty has led me to consider very attentively the argument which has been submitted to me. The conclusion to which I have come is, that Mr Justice is not entitled to have his claim sustained, and that the interlocutor of the Lord Ordinary ought to be altered. I have come to that conclusion on two grounds. The first is that Mr Robert Ker himself would not be entitled to succeed in his demand, and for this reason, that the estate left by the truster is vested feudally in the trustees, for the purposes of the trust. They are to hold the estate so as to enable them to perform these purposes, and they could not perform their functions if they were to relinquish possession of the trust estate, and grant any such deed as is here demanded. The intention of the testator was that the feudal right to this estate should remain in the person of these trustees without qualification or restriction until all the purposes of the trust were accomplished. On examining the deed we see that it is framed on that footing. There are many purposes which the trustees could not fulfil if they divested themselves of the estate. They are to give the house to the mother who is still alive. Then there are provisions to children, depending on a variety of conditions not yet fulfilled, and then they are to hold the residue in trust for Robert Ker, and the heirs of his body, whom failing a series of substitutes, until they attain the age of majority, and then follows the declaration on which the former case depended, as to the conduct of the beneficiaries. Now the trust is so constituted that the trustees shall retain the whole estate vested in themselves until the trust is at an end, and that the beneficial interest of the different parties must be given effect to by the trustees. Accordingly Robert Ker junior, having attained the age of 21, became entitled to the emoluments of the trust estate, so far as not required for the other trust purposes. But he was entitled to get these free rents and revenues from the trustees. He had a right to demand them from the trustees, but that was his right, and I don't think the trustees were under any obligation to infeft him in the right to the trust estate or to limit their own right in that respect. I think that if this demand had been made by Robert Ker junior himself, it could not have been granted. Mr Justice, as in his place, has a right to uplift these rents by the judgment I have referred to. But he says he is entitled to have a feudal right to the lands themselves. I do not think that such a right is possible. I do not think that even if Robert Ker junior had himself been infeft as a liferenter, that right could possibly have been assigned to his assignee. By the law of Scotland, such a liferent right is intransmissible. It cannot be communicated, or conveyed in any way whatever, and no person except the original liferenter can be infeft in the liferent. The authorities are quite clear on that point. (Stair ii. 6, 7; Erskine ii. 9, 41). On these grounds, I think that the demand here made by Mr Justice
Page: 384↓
cannot be complied with, and that he has already got all he is entitled to.
Lord Deas—In this case the Lord Ordinary has found [
reads interlocutor]. I agree with Lord Curriehill that these parties are not entitled to this conveyance. It is clear that in the ordinary case of a disposition and deed of settlement in favour of trustees, where the trustees are to hold the heritable subjects under that deed for behoof of a party in liferent, and the issue of that party, born or unborn, in fee, they cannot be called on when the trust subsists, and they are not getting any decree of exoneration, to convey that liferent, or, in other words, to denude of the trust to that extent. The trustees are entrusted by the truster with the duty of holding the subjects for certain purposes, for behoof of the liferenter and fiars. When the time comes for denuding of the fee, a conveyance may be granted by the trustees to the liferenter in liferent, and to the fiar
nominatim in fee, and to whatever substitutes the truster has appointed, and they will be entitled to exoneration. But till then, their duty is to hold for behoof of the different parties. I never heard of a case in which trustees under such a settlement was required to denude of the liferent when they could not dispose of the fee. So long as the purposes are unfulfilled, the responsibility lies on the trustees of managing the estates; but if they should grant such a conveyance of the liferent as is here asked, they would have nothing more to do with the estate until the time came for disposing of the fee. If, in the meantime, any one interfered with the estate—if, for instance, any question arose as to the cutting of wood, it is difficult to see how the trustees could interfere, notwithstanding the duty imposed on them by the truster. If they were to denude, they could not grant a lease, or perform any act of administration. Is there anything in this deed to make a conveyance of the liferent competent, more than in the ordinary case? I don't think there is [
reads directions in trust-deed]. To none of these parties could the trustees convey until the proper time came. It has been found already that the trustees had power to restrict Robert Ker's right to a liferent. They did so restrict it. and the effect of that is, that they now hold as if the deed had directed them to hold for him in liferent, and for the others in fee.
It is a separate matter whether they might give to Robert Ker or Mr Justice actual possession of the estate. No question as to that is raised here, and on that matter I give no opinion. It may be a question of circumstances whether, when an estate is directed to be held for one party in liferent, and for others in fee, the trustees can put the estate into such a position. If they did, they would still be responsible. Besides that, I have all along wished to know what sort of deed it was at which the Lord Ordinary pointed. The trustees now hold Mr Robert Ker junior, in liferent, and for others in fee. Robert has a
jus crediti for his liferent. He has made a conveyance of that, but it stands in the position of a
jus crediti still. The only deed that could be granted would be not an assignation, but a constitution of a liferent. I never saw a conveyance of a liferent, not to the liferenter, but to some one else. It would be quite against the will of the testator for the trustees to give away their power of management.
Lord Ardmillan—In reviewing this interlocutor, the first thing we have to do is to see if we understand what the Lord Ordinary means. He finds:—“That the raisers, the trustees of the deceased Robert Ker, of Argrennan, are bound to execute a deed of conveyance in favour of Robert Ker junior, now of Argrennan, the eldest, son of the said deceased Robert Ker, or of the claimant Walter Justice, as his assignee, as shall be required of them by the said Walter Justice, of the liferent right and interest in the lands of Argrennan, and other subjects, which, by prior interlocutors in the cause, has been found to pertain to the said Robert Ker, junior.” Now, in the first place, what is it which, by previous interlocutors, has been found to belong to Robert Ker junior. I am satisfied that nothing more has been decided than that Mr Justice is entitled to the rents in the hands of the trustees, and that there has been no finding of any right of liferent other than to receive from the trustees the rents which they draw. Whether he had such a right as he now claims was not touched by our former judgment. Lord Colonsay said:—“If Mr Justice is entitled to a conveyance of the estate, I do not see that in the Lord Ordinary's interlocutor, and this judgment does not foreclose that question.” And Lord Deas and myself expressly reserved the question. The second point is, whether the Lord Ordinary here meant a direct conveyance to Mr Justice. He says the trustees are to convey either to Mr Robert Ker or to Mr Justice. If Mr Justice asks them to convey to him, I agree that that is out of the question. It is impossible to make Mr Justice liferenter in the estate. He may have an interest in the rents assigned to him, but he cannot be a liferenter. That leaves the question whether Mr Robert Ker or Mr Justice is entitled to a conveyance to Mr Robert Ker, and on that matter I concur with your Lordships. This is a trust constituted for a long period. The trustees hold for many beneficiaries, with many important duties arising from time to time; and I am clearly of opinion that it is not in the power of Mr Robert Ker to break up the trust before the trustees can be fully exonered. He is entitled to receive the rents from their hands, but to no more.
The
Lord President, not having heard the argument, took no part in the advising.
