Scottish Court of Session Decisions

On 14th February 1894 Mrs Mary Henry or Byres, residing at Stranraer, executed a trust-disposition, whereby she appointed David Logan, Stranraer, and others, “my trustees and managers of my affairs, and that absolutely.” The trust—disposition proceeded:—“And for that purpose I assign, dispone, and make over to them, and the acceptors and survivors of them, my whole heritable and moveable property, of whatever nature and description the same may be, wheresoever situated, together with all the title-deeds, vouchers, evidences and instructions thereof, and all as more particularly described in the title-deeds and documents in regard thereto : And I direct my said trustees as follows:—( First) My said trustees shall take possession of my estates foresaid, as I hereby authorise them to do for the purposes after mentioned: ( Second) My said trustees will give me the free income of my said estates during my lifetime, and I undertake not to interfere with them in any manner of way: ( Third) At my death I direct my said trustees to dispose of my estates after making payment of the legacies after mentioned: ( Fourth) In the event of Mrs Catherine Byres or Gemmell, wife of John Dick Gemmell, veterinary surgeon, Ayr, surviving me and having lawful issue, two-thirds of my estates, and of the free income of said estates, will be given to her and to her children equally, share and share alike, thereafter; but in the event of no issue of the marriage, she, the said Catherine Byres or Gemmell, will have her liferent use allenarly of the said two-thirds of the free income of my estates, and the said John Dick Gemmell, her husband, will have the property purchased in the name of the said Catherine Byres or Gemmell, and be his property, and in that event the legacy after mentioned in his favour will lapse: ( Fifth) In the event of the said John Dick Gemmell not succeeding to the said property purchased by me in the name of the said Mrs Catherine Byres or Gemmell, I leave him a sum of £500, and in that case he shall have the option of claiming the said property in lieu of said sum: ( Sixth) The remaining one-third of my estates I direct to be divided, in the discretion of my said trustees, among my relatives, viz., the family of the late William Henry, crofter, Broad stone, Stranraer: ( Seventh) Failing any issue of the marriage of the said Catherine Byres or Gemmell, with exception of the said property purchased by me in name of the said Catherine Byres or Gemmell, the whole of my estates will be equally divided among the family of the said William Henry: ( Eighth) I direct my trustees to pay at my death to Archibald Drummond, Union Bank agent, Glasgow, the sum of £950 sterling, or such sum as my trustees find available, to make him and the said John Dick Gemmell equal as my

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sons-in-law in my said estate: ( Ninth) I direct my said trustees to pay the following legacies, viz., to Margaret Caughie, my old servant, presently residing in Church Street, Stranraer, the sum of £100 sterling, if she survive me; to Janet Stewart, my old nurse, at present with me, the sum of £100 sterling, if she survive me; to Helen Steel Wilson, presently my nurse, and residing with me, the sum of £100 sterling, in the event of her remaining with me, attending and nursing me till my death, besides her wages as agreed on: ( Tenth) My said trustees are hereby authorised to recover all documents pertaining to my said estates, with full powers: ( Eleventh) An inventory and valuation will then be made up, including all accounts, to enable my said trustees to see the state of my affairs: ( Twelfth) My trustees shall employ James Stuart Carnochan, writer, Stranraer, to be their law-agent and factor in my estates: I recal and cancel all prior settlements made and executed by me.”

Mrs Byres' trustees at once entered upon office, took possession of the trust-estate, and made up titles to the heritage of the truster.

On 26th February 1894 the said Mrs Gemmell executed a trust-disposition and settlement, whereby she conveyed her whole estates, with full power to take possession of them, to the persons named in Mrs Byres' trust-disposition.

On 23rd and 26th April 1894 Mrs Byres and Mrs Gemmell executed a deed of revocation of their respective trust-dispositions.

Mrs Byres died on 27th May 1894, leaving a testamentary writing dated 23rd April 1894, by which she bequeathed her whole estates to her daughter Mrs Gemmell, and appointed her to be her executrix.

On 3rd August 1894 Mrs Byres' trustees raised an action of multiplepoinding and exoneration against Mrs Gemmell, the widow and children of the late William Henry, crofter, Broadstone, and the other beneficiaries under the trust-disposition, for the purpose of determining the respective rights of parties to the trust-estate. This action related exclusively to Mrs Byres' trust-deed and estate.

On 18th September 1894 Mrs Gemmell and her husband raised an action of declarator that both Mrs Byres' trust-deed and Mrs Gemmell's trust-deed had been revoked. The only defenders called were Mrs Byres' trustees, the pursuers and real raisers in the multiplepoinding.

In the preliminary stages of the multiplepoinding Mrs Gemmell and her husband alone compeared; and they objected to the competency of the action on various grounds.

On 29th January the Lord Ordinary ( Kincairney) pronounced an interlocutor repelling the defences to the competency of the action, and ordering claims to be lodged. In his note, after disposing of the objections to competency, his Lordship pointed out that the question to be debated on claims was, whether Mrs Byres' trust-deed had been revoked, and added—“It is true that this question might have been tried in a declaratory action, and perhaps even more conveniently, and if I had thought that it could have been tried as well in the declaratory action which Mr and Mrs Gemmell have raised, I might have dismissed the present action as having become unnecessary; but I do not think so, for the reason that the parties having the beneficial interest under Mrs Byres' trust-deed are not called, and I doubt whether the trustees have a clear duty to represent them in regard to a question which does not regard their administration of the trust-estate but challenges their trust altogether.”

Claims were thereafter lodged in the competition for (1) Mrs Gemmell and her husband, (2) Mrs M'Chlery and the other children of the late William Henry, and (3) Mrs Byres’ trustees, for behoof of the pupil daughter of Mr and Mrs Gemmell, whose interest was antagonistic to that of her parents.

(1) With reference to Mrs Byres' trust-disposition Mrs Gemmell averred that it was granted under essential error, that it had been impetrated from her when she was weak and facile by fraud and circumvention, and that in point of fact it had never been delivered. In addition to pleas founded upon these averments, Mrs Gemmell pleaded—“(3) The said trust-disposition and settlement of Mrs Byres having been validly revoked by the said deed of revocation, the pursuers and real raisers became as at the date of the intimation to them of the said deed of revocation simply debtors of Mrs Byres to the extent of the fund in medio, and this claimant is accordingly entitled as her executrix-nominate and general disponee to be ranked and preferred to the whole fund in medio.… (5) The said disposition and settlement being the only valid and effectual deed regulating the succession to the deceased Mrs Byres' estates, this claimant is entitled to be ranked and preferred to the whole fund in medio.”

(2) Mrs M'Chlery and the other children of William Henry, together with his widow, made similar averments of weakness, facility, fraud, and circumvention with regard to Mrs Byres’ revocation of her trust-deed.

They pleaded, inter alia—“(2) The said trust-disposition and settlement having been delivered and acted on, was not revocable, and, separatim, the same not having been validly revoked or altered, is the only subsisting disposition of the fund in medio.”

(3) Mrs Byres' trustees averred that immediately after executing the trust-disposition Mrs Byres personally delivered it to them. They claimed the whole fund in medio, to be administered by them in terms of her trust-disposition, and in support of this contention pleaded that the deed was irrevocable.

On 3rd December 1895 the Lord Ordinary pronounced the following interlocutor “Finds that the trust-disposition executed

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by the now deceased Mrs Mary Henry or Byres on 14th February 1894 was irrevocable, if duly delivered, and that it has not, if delivered, been effectually revoked: On the motion of the pursuers, finds them entitled to the expenses of raising and bringing the action out of the fund in medio: Further, finds them entitled to their expenses against the defenders Mr and Mrs Gemmell incurred in reference to the defences to the competency of the action, and reserved by interlocutor dated 29th January 1895: Allows Mr and Mrs Gemmell a proof of their averments in regard to the delivery of the trust-deed of Mrs Byres, dated 14th February 1894, and to the pursuers and to the claimants Mr and Mrs M'Cillery, and others mentioned in No. 24 of process, a conjunct probation: Quoad ultra reserves all questions of expenses: Grants leave to reclaim.”

Opinion.—… “It is maintained, on the one hand, that Mrs Byres revoked her earlier deed; and on the other hand, that that deed was irrevocable.

That, however, is not the sole question raised, for Mrs Gemmell now avers distinctly that the first trust-disposition was never delivered, while the other claimants aver that it was. Further, Mrs Gemmell avers that the first trust-deed was fraudulently impetrated from Mrs Byres while she was physically weak at d unable to understand what she was doing. Conversely, the claimants Mrs M'Chlery and others aver that she was of sound mind when she executed the first deed, but that the revocation and second trust-deed were fraudulently impetrated from her when she was weak and facile.

It appears to me that there is nothing which I have hitherto decided which can prevent me from entertaining and deciding all these pleas; but I think that it is not in accordance with our ordinary practice to try the questions raised as to the validity of the deeds except in actions of reduction. At the same time I reserve my opinion as to the competency of trying these issues in this multiple ponding, and, at all events, the consent of parties might obviate the necessity of raising reductions.

In these circumstances all the parties pressed me to decide in limine the question as to the revocability of the first trust-disposition on the footing that it was competently executed, and on the footing that it was delivered. No one disputed that it might be revoked if it had never been delivered. The pleading might take this form, that the averment that the deed was delivered was irrelevant, seeing that it was revocable and revoked. All parties were of opinion that it would be convenient to take this course; and though I am by no means clear as to the convenience of that course, yet, as the question was carefully argued, and as the authorities were fully discussed, I have come to think that I may comply with the wishes of the parties, in the hope that elsewhere the same course may be followed.

[ After reciting the terms of the trust-disposition his Lordship proceeded]—“Now the question put is, whether this deed was entirely revoked? There is no question about its partial revocation. Nobody but the Henrys and the trustees have pleaded that it is irrevocable. In particular, neither Archibald Drummond nor any of the other legatees have appeared to state that plea. The trustees represent that they consider it their duty to take that plea in order to protect the interest of Mrs Gemmell's child, a pupil born after Mrs Byres' death, seeing that the interests of the pupil and of Mrs Gemmell are antagonistic. I understand that no child of Mrs Gemmell was alive when Mrs Byres executed the trust-deed now in question.

I have found the question whether Mrs Byres' deed was revocable or no, supposing it was delivered, a very difficult one; for I am much impressed with certain features in the deed of a character apparently testamentary. It bestows ‘legacies’; it revokes all ‘previous settlements’; and, but for previous decisions, I might have leaned to the view that the deed was testamentary; but I think that the previous cases point too decidedly in the opposite direction, and that on the decisions I am obliged to hold that the deed was irrevocable if delivered.

The description of the estates conveyed is very wide, yet it does not include acquirenda. It is not a conveyance of the estate as it might exist at the date of the granter's death. It is a conveyance de præsenii; prima facie it divests the granter, and it may be doubtful whether she could have been reinvested excepted by a conveyance from the trustees. The trustees are directed and empowered to take possession of the estates. It was to have immediate operation. The trustees were to pay the liferent of it to the granter; but that seems the only effect which it was to have during her life, and if there had been no provision in the deed but that, I think she might have revoked it notwithstanding her somewhat singular undertaking not to interfere. I would have had difficulty in holding that the fourth purpose, by which two-thirds of her estate is directed to be given to Mrs Gemmell and her children, would prevent revocation, seeing that Mrs Gemmell is not maintaining that it does, and seeing, as I understand to be the fact, that she had no children alive at its date. If the deed had conferred no other right, I think that the principle of the cases of Morison v. Dick, February 10, 1854, 16 D. 529, and Mackenzie v. Mackenzie's Trustees, July 10, 1878, 5 R. 1027, in which it was held that where a deed conveyed no interest to any living person it was not beyond the granter's power to recal would apply; but by the sixth clause a clear right is conferred on the family of the truster's brother William Henry. It is not to be payable until after the truster's death; but it is a right conferred by a deed assumed to be delivered during life, and in such a case I consider that the decision compels the conclusion that the trustees, when they received the estate, held it for these beneficiaries.

In that view I must hold that the present case is of the same nature as the cases

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in which a delivered deed conferring a right, whether accruing immediately or in the future, whether vested or contingent, has been held to be irrevocable. The more important and most closely applicable of these cases seem to be these— Turnbulls v. Tawse, April 15, 1828, 1 W. and S. 80; Smitton v. Tod, December 12, 1830, 2 D. 225; Spalding v. Spalding's Trustees, December 18, 1874, 2 R. 237; Mackie v. Gloag's Trustees, March 9, 1883, 10 R. 760; Robertson v. Robertson's Trustees, June 7, 1892, 19 R. 849; and Doumie's Curator Bonis v. Macfarlane's Trustees, July 20, 1895, 32 S.L.R. 715. The case of Spalding's Trustees is especially valuable for the exposition of the law by the late Lord President. His Lordship was indeed in the minority; but it is to be remarked the case was not decided on the ground that the deed was revocable, but on the ground that the posthumous child, to which the case related, was a prior creditor. As to the irrevocability of the deed, the Court seem to have been equally divided. I would refer in particular to the opinion of Lord Rutherfurd Clark in the case of Mackie v. Gloag's Trustees. Many other cases were quoted, but I think that they, or some of them, relate to different categories of law, and I regard as inapplicable cases in which deeds were held irrevocable because granted by a married woman for her own protection, or because they partook of the character of marriage—contracts, and, on the other hand, cases where deeds were held to be revocable as donations inter virum et uxorem. Counsel for Mrs Gemmell relied somewhat specially on Costine's Trustees v. Costine, March 19, 1878, 5 R. 782; aff. Wightman v. Costine, March 6, 1884, 11 R. (H.L.) 10; but I am not able to see that that case applies.

It may not be impossible to regard a deed as in part revocable and in part irrevocable, as was done in the case of Leckie v. Leckie's Trustees, November 22, 1776, M. Presumption, No. 1. But there the decision turned on delivery, and it was held that the deed was delivered as a disposition of heritage, and not delivered as regards moveables—apparently rather a difficult position. I think, however, that in this case I cannot distinguish between the various parts of the deed; nor really does the question arise whether a partial revocation would have been effectual. My judgment, in any view, can only affect the parties who have appeared. I cannot, however, do more than find that the deed, if delivered, was irrevocable and has not been revoked; and it will be necessary to ascertain whether there was delivery or not.”

The claimants Mr and Mrs Gemmell reclaimed. At the hearing the reclaimers presented a note craving that the action should be sisted until the determination of an action of reduction of the trust-disposition which they had raised. The Court refused the note.

Lord President—The parties have concurred in adopting one order of dealing with the questions raised in this case, and they claimed the decision of the Lord Ordinary on this footing, and we have now before us a reclaiming-note impeaching the soundness of the Lord Ordinary's decision on the question submitted to him. On reflection I think it would not be right to interfere with the course of procedure thus deliberately adopted. Of course nothing irretrievable will follow from our refusal of Mrs Gemmell's motion.

Lord Adam—I concur. I think there is a great deal to say for the view that the question of fact should have been disposed of before the question of law, but as circumstances stand the question of the irrevocability of this deed has been raised first, and both parties have agreed that it should first be disposed of, and have acted on that footing up to the present time. That being the case I do not think we should now alter the course of procedure.

Lord M'Laren—I do not doubt that if the parties had concurred in asking that the reclaiming-note should now be sisted in order that a reduction should be tried, the Court would have dealt with it as they desired. But it seems to me that the reclaimer and respondent have equal rights in the issue of the reclaiming-note, and that the respondent is entitled to insist that the note should be disposed of in order to have the questions it involves settled, unless some good reason can be shown for sisting it. Now, these considerations being evenly balanced, I think the result is that the case should go on.

Lord Kinnear—I agree. I think the parties had agreed to the order of procedure which the Lord Ordinary has adopted, and I think that one party should not be allowed unreasonably to throw over that order.

The hearing accordingly proceeded.

Argued for the reclaimers—The Lord Ordinary was wrong. The whole tenor of the deed was testamentary, and was aptly summed up in the third purpose. There was, in the first place, the conveyance of a universitas, which was a note of testamentary intention— Spalding v. Spalding's Trustees, December 18, 1874, 2 R. 237. There was, indeed, an indication of the granter's purpose that the trustees should manage her affairs for her, but everything else was purely testamentary. She used the words “at my death,” she bequeathed what she expressly called “legacies,” the amount of the “two-thirds” and “one-third” of her estate mentioned in the fourth and sixth purposes could only be determined at her death. Finally, there was an explicit revocation of all prior settlements, which was precisely what might be expected in a will. The deed conferred no jus qucesitum on anyone, and the case fell within the category of Murison v. Dick, February 10, 1854, 16 D. 529; Fernie v. Colquhoun's Trustees, December 20, 1854, 17 D. 232; and Mackenzie v. Mackenzie's Trustees, July 10, 1878, 5 R. 1027. It was therefore distinguishable from Turnbulls v. Tawse, April 15, 1825, 1 W. & S. 80, where the House of

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Lords held that the children had a vested interest in the estate of the truster as much as if there had been a direct conveyance to them nominatim; from Smitton v. Tod, December 12, 1839, 2 D. 225, where the decision proceeded upon the view that the ends and purposes of the trust precluded the inference that the trust-deed was irrevocable; from Mackie v. Gloag's Trustees, March 6, 1884, 11 R. (H. of L.) 10, where the trustees were directed to hold for the benefit of the beneficiaries, and the deed contained a power of apportionment which was held by Lord Watson (p. 17) to be inconsistent with the idea that the fee still remained in the truster; from Robertson v. Robertson's Trustees, June 7, 1892, 19 R. 849, where there was a conveyance not of a universitas but of certain specific subjects, and where none of the provisions were contingent on the truster's death; from Murray v. Macfarlane's Trustees, July 17, 1895, 22 R. 927, where there was a direction to the trustees to accumulate, and a declaration that the deed was irrevocable; and from Shedden v. Wilson, November 29, 1895, 3 S.L.R. 154, where there was a declaration that the trust-estate should not be affectable by the deeds of the truster. Here there was no more than a promise by the truster not to interfere with the trustees.

Argued for the respondents—The Lord Ordinary was right. The true test was the intention of the granter of the deed, and here she had prima facie divested herself of her estate at the time of granting the deed. There was no conveyance of acquirenda. The whole fee of her estate was disposed of in a series of directions to convey, and the fact that payment was postponed till the date of the granter's death was not inconsistent with the present gift of a fee. In Turnbulls v. Tawse the purposes were, first, payment of the truster's debts; and secondly, payment of the free income to the truster's widow; and thirdly, the protection of the estate for behoof of the fiars. In Smitton v. Tod there were purposes which must be carried out during the granter's lifetime. Here, too, the proper management of the truster's estate during her lifetime was plainly contemplated. But in Spalding there was no purpose to satisfy during the granter's lifetime except the payment of the income to himself. Fernie was a case, of donatio inter virum et uxorem. In Mackenzie there was no person in existence whose benefit was contemplated, and Lord Young put the judgment on the ground that Miss Mackenzie was only proposing to alter her former deed in order to execute a postnuptial marriage—contract containing reasonable provisions for the husband and children. The true analogy in Mackenzie's case was a protected succession under a marriage-contract.

At advising—