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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John William Henry, Earl of Stair v. John Earl of Stair's Trustees [1825] UKHL 1_WS_72 (29 March 1825) URL: http://www.bailii.org/uk/cases/UKHL/1825/1_WS_72.html Cite as: [1825] UKHL 1_WS_72 |
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Page: 72↓
(1825) 1 W&S 72
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1825.
1 st Division.
No. 11.
Subject_Trust — Clause. —
A party having conveyed to trustees his whole funds, interest and proceeds thereof, to be vested in lands, which were to be annexed to his entailed estate, and bequeathed legacies, of which one was not payable for six months after his death; and his heir of tailzie having claimed the interest of the funds from and after the day on which the truster died;—Held, (affirming the judgment of the Court of Session), That he was not entitled to the interest from that period.
On the 1st of June 1821, John Earl of Stair died without heirs of his body, having made an entail of his estates in Scotland,
Page: 73↓
In November 1821 the appellant brought an action before the Court of Session against the respondents, in which he set forth, that “whereas the said John last Earl of Stair died upon the 1st day of June last without heirs of his body, and the said pursuer as his heir and executor has right to the whole interest, dividends, and proceeds of the real and personal estate left by the said Earl, from and after the day of his death,” and “therefore the said Sir John Dalrymple Hamilton Macgill, Bart., Robert Dalrymple Horne Elphinstone, Anthony Goodeve, and John Smith, ought and should be decerned and ordained, by decree of the Lords of our Council and Session, to hold just count and reckoning with the pursuer for the whole interest, dividends, and proceeds of the real and personal estate of the said John Earl of Stair, that has arisen from and since the said 1st day of June last, or that may arise thereon, and to make payment to the pursuer of the balance that may arise upon such accounting; or otherwise to make payment to the pursuer of the sum of L.10,000 sterling annually, aye and until the termination of the foresaid trust, and the said defenders are discharged of their actings and proceedings under the same.”
To this action defences were returned on the part of the trustees, that “it was understood to be Lord Stair's intention, and that intention the defenders conceive is clearly and legally declared, that they should lay out the residue of the trust-funds, and whatever interest should arise from the trust-funds while
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“Finds, that by the trust-deed in question, executed by John Earl of Stair, his trustees the defenders are directed, “after my debts and legacies are all paid, and a sum is set apart for payment of the annuities, or the same are otherwise well secured, I appoint my said trustees, or their foresaids, to lay out the residue of the trust-funds, and interest and proceeds thereof, in purchasing lands in the shires of Wigton or Ayr, or stewartry of Kirkcudbright; and, at the sight and with the advice and consent of the Lord President of the Court of Session, and of his Majesty's Advocate for Scotland for the time being, to annex the same to my entailed estate, by taking the rights and securities of the lands so to be purchased to the same heirs of tailzie, and under the same conditions, clauses irritant and resolutive, contained in the disposition and tailzie of my lands of Culquhasen:” Finds, that the pursuer is heir of entail, served and retoured to John Earl of Stair, conform to retour of his special service, by which he has right to the said lands of Culquhasen and others, and the procuratory contained in the entail thereof, and upon which he has obtained a charter of resignation from the superior: Finds, that it is only in this character of heir of entail that he has any claim under the trust-deed executed by the late Earl, and that the trustees are bound to convey to him merely in that character the lands purchased by them with the residue of the trust-funds: Finds, that John Earl of Stair died upon the 1st
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June last, and that no delay or tardiness has been pointed out upon the part of the trustees in the execution of their trust: Finds, therefore, that in hoc statu there is no claim upon the part of the pursuer for any interest that may have arisen upon the funds of the late Earl, from the time of his death upon the 1st June last; reserving to the pursuer to be heard in case any improper or unnecessary delay take place, whether he may not then be entitled to claim the interest of the residue of the funds not vested in lands, as a surrogatum for the lands so directed to be purchased and entailed upon him and the other heirs; and to the defenders their defences as accords.”
On advising a representation, his Lordship reported the case to the Court; and their Lordships, on advising informations on the 12th of February 1823, * sustained the defences and assoilzied the respondents. Lord Stair then appealed, but the House of Lords ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed.” †
_________________ Footnote _________________ * 2. Shaw and Dunlop, No. 187. † See Reports of a subsequent case between the same parties, Vol. II. p. 414. (where the authorities will be found), and p. 614.; and 5. Shaw and Dunlop, 248.
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My Lords,—After the execution of this trust-deed, the Earl of Stair executed some other instruments, by which he directed legacies to be paid to the persons named in those instruments; and in the year 1819 he executed an English will, by which he gave and bequeathed L.3000 to the Right Honourable Hugh Elliot, Governor of Madras, to be paid within six months after his death; another legacy to the Earl of Lauderdale; and then, as to all the rest, residue, and remainder of his personal estate in England, which should not consist of real or government securities, he directed his executors to convert the same into money, and, after payment of his just debts, to invest such money in government securities; and then he gave and bequeathed all such stock, together with all other stocks, funds, and securities, of which he might be possessed at the time of his death, to such uses, and for such purposes, as his Lordship had in and by a certain deed and writing, prepared according to the Scots form, executed by him, and bearing date the 18th day of December 1815, which is the instrument I first stated to your Lordships, declared of and concerning his personal estate: and as to all estates which at the time of his death should be vested in him
Page: 77↓
My Lord Stair died about June 1821, and in the following month of November an action of count and reckoning was raised by the present Earl of Stair, claiming, as heir of entail, an account from the trustees of the proceeds of Lord Stair's property, and claiming to be entitled to the interest and dividends thereof from the time of Lord Stair's death. I say, my Lords, he claimed it in the character of heir of entail;—he certainly did not do so by his first summons; but by the subsequent summons he so claimed it.
It was admitted at your Lordships' Bar, that the question raised in this case was not one which had occurred in any Scotch Court, on which there had been any decision:—The question raised being of this nature,—Though the property bequeathed by Lord Stair was, as I have stated to your Lordships, to be converted into land, and that land to be settled according to the entail of his estate of Culquhasen, and, therefore, not to be enjoyed in that shape by the parties to possess this property until so converted; it was contended on the part of Lord Stair, that it was not necessary for him to wait till that had taken place, but that being entitled as next heir of entail, he was entitled to the interest of this property before it was laid out in land. That question appeared to be untouched by any case in the Scotch Courts, and therefore reference was made to cases in the English Courts; and particularly to a case before the present Lord Chancellor, the case of Sitwell v. Bernard, in which it was contended, that, by analogy to that and the other decisions, my Lord Stair was entitled to the interest from the death of the late Earl of Stair. My Lords, it is true that this is purely a Scotch case; but, as it depended upon the general principles of equity, it was thought that recourse might be had to those decisions which have taken place in this country, proceeding on the general principles of equity. But, my Lords, unfortunately the analogy which my Lord Stair attempts to draw from those cases, does not bear out the proposition for which he contends; for, according to those cases, particularly that of Sitwell v. Bernard, the courts of equity in this country have proceeded upon this principle, that though no particular period has been limited by the testator or the granter within which a conversion should be made, and although it may appear upon the face of the will, that, until that conversion, the interest and proceeds of the property should be applied as a principal fund in the purchase of land; yet, with a view to the general interest to be benefitted by the will or the instrument, as a rule of convenience the Courts here have said, that they will take the period of a twelvemonth after the death of the testator, as a reasonable period within which the trustees
Page: 78↓
But then it has been said at your Lordships' Bar, that although the action in this case does claim the property from the time of the death of the late Lord Stair, your Lordships might, under these circumstances, prospectively declare from what period he shall be entitled to the interest in this residue; and, my Lords, I have, in consequence of that view being presented, considered very attentively whether that can be done; but I do not see how your Lordships can, in this state of the case, be called upon so prospectively to decide. I observe by the defences the respondents say, that, at that period, they had laid out only a part of this in the land. Your Lordships are in ignorance what may have been done in the remaining part of that year, which, according to the English cases, was to be allowed to those trustees for realizing the property, and laying it out in land. Your Lordships have no case before you on which you would decide that question, even if you could with propriety be called upon to decide it.
But I must confess to your Lordships, that this is a most important
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After the best consideration I have been able to give to this case, I can offer no other advice to your Lordships, than that the interlocutor of the Court of Session shall be affirmed; which sustains the defences for the trustees, assoilzies the defenders from all the conclusions of the action against them, and decerns. The judgment of your
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