Scottish Court of Session Decisions

James Marshall, of Goodockhill and Sandyford, by his trust-disposition and settlement, dated 1st November 1880, conveyed his whole heritable and moveable estates to trustees, and particularly the several estates in land therein described. With regard to these estates, he directed his trustees, subject to certain special provisions as to the minerals, “to convey and make over, at the first term of Whitsunday or Martinmas that shall occur six months after my decease, my foresaid several lands and others in favour of my after mentioned sons respectively, viz.— … Item, My trustees shall convey my foresaid lands of Syderig or Newhouse, specially above disponed in the fourth place, with the teinds and all parts and pertinents thereof, to the said Gavin Ballantyne Marshall, my youngest son, whom failing to his lawful children equally among them.”

James Marshall died on 5th January 1881, survived by Gavin Ballantyne Marshall. James Marshall's trustees, by disposition dated 18th and 23rd March 1882, and recorded 19th April 1883, in which they narrated the clauses above quoted, disponed and conveyed the lands of Syderig or Newhouse “to the said Gavin Ballantyne Marshall, whom failing to his children equally among them, whom failing to his heirs and assignees whomsoever” under reservation of the minerals. In terms of the special direction with regard to them the minerals so reserved were ultimately also conveyed to Gavin Ballantyne Marshall by a disposition containing a destination in terms practically identical with those above quoted. Both these dispositions were recorded under warrants directing registration on behalf of Gavin Ballantyne Marshall. They were not recorded on behalf of Gavin's children.

Gavin Ballantyne Marshall died intestate on 15th November 1896, survived by his widow, Mrs Isabella Murray or Marshall, and two pupil sons, James Marshall and William Murray Marshall. The deceased never altered the destination in the said dispositions.

In these circumstances questions arose as to the rights of Gavin Ballantyne Marshall's two children in the estate of Syderig or Newhouse. For the decision of these questions a special case was presented to the

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Court by (1) Mrs Isabella Murray or Marshall, as tutor and administrator-in-law to her two sons, and (2) James Marshall, and (3) William Murray Marshall, to whom tutors ad litem were appointed.

The questions of law were—“(1) Is the second party entitled to succeed to the said heritable estates as heir-at-law? Or (2) Are the second and third parties entitled to succeed thereto in equal shares as heirs of provision?”

Argued for second party— The provisions of the trust-disposition did not import a substitution but a conditional institution. The trustees were directed to make the conveyance to Gavin, whom failing to his lawful children. Where trustees were directed so to convey they were bound to make a simple conveyance to the son if he were alive, and had no right to insert a substitution in the deed— Allan v. Fleming, June 20, 1845, 7 D. 908. The trustees in inserting a substitution in the dispositions had acted ultra vires, and their action could not alter the rights of parties— M'Nicol's Executrix v. M'Nicol, February 18, 1893, 20 R. 386. There was no evidence that Gavin Ballantyne Marshall had asked for a conveyance in these terms, and the deed had been recorded for himself only. The second party as his heir-at-law was entitled to succeed to his heritable estate.

Argued for third party—The provisions in the trust-deed imported a substitution, and the dispositions and the destinations therein were in accordance with the directions contained in the trust—disposition. The trust-deed contained a destination, and the trustees were bound to convey in terms thereof. This destination had never been evacuated by Gavin Ballantyne Marshall and therefore still remained effectual— Ersk. iii. 8, 44; Gray v. Gray's Trustees, May 24, 1878, 5 R. 820. Besides, the trustees granted dispositions to Gavin Ballantyne Marshall with this destination inserted, and if a man held property without objection on a title which contained a destination, that destination ruled the succession to the property unless it was effectually evacuated by him before his death— Connell's Trustees v. Connell's Trustees, July 16, 1886, 13 R. 1175. Gavin Ballantyne Marshall had accepted the destination, and as he had never evacuated it the property descended to the second and third parties as heirs of provision.

At advising—