United Kingdom House of Lords Decisions

The Lord Ordinary (Kyllachy) found that the destination was to that extent disconform to the directions of the trust, and gave the appellant decree of reduction. This judgment was reversed by the learned Judges of the Second Division, who assoilzied the respondents. I concur in that result, but I have not found it necessary to consider all the reasons which were assigned for it by Lord Rutherfurd Clark in delivering the judgment of the Court.

In the argument addressed to us no serious controversy was raised in regard to the duty cast upon the trustees by the directions of the truster. His trust-deed contains a specification of the line of heirs whom he intended to take successively under the entail which he directed to be made. In settling the terms of the destination to be inserted in the deed of entail, the trustees were not bound to adopt the ipsissima verba of the deed of trust. On the other hand, they would not have been justified in framing the tailzied destination so as to disturb any right conferred by the language of the trust-deed, or to create any beneficial interest which would not have arisen had its language been strictly followed. I did not understand the respondents to dispute that if such an interest had been, created by the trustees to the prejudice of the appellant, in their endeavour to carry out the directions of the truster, the deed of entail would be, to that extent, reducible at the appellant's instance.

I have been unable to accept the argument maintained for the respondents to the effect that the line of destination prescribed by the deed of trust was altered or modified by the codicil of 9th July 1860. In my opinion, the sole effect of the codicil is to reaffirm and emphasise the motives which induced the truster to direct that, failing his kindred of the Inglis family, the succession under the Newmore entail was to devolve upon the successors of his grandfather George Gillanders under the entail of Highfield. I therefore prefer to rest my judgment upon the terms of the destination contained in the trust-deed, which appears to me to embody the whole intentions of the testator with respect to the line of heirs to be called in the entail. I am of opinion that, had the deed of entail repeated verbatim the language used by the testator to describe the heirs whom he preferred, the appellant would have occupied the same position, and the posterior substitutes whom he seeks to displace would have had the same jus crediti as he and they respectively occupy and possess under the deed of entail as executed.

I now proceed to consider the terms of the trust-deed; and shall notice in the first place those branches of the destination in regard to which there is no controversy. The institute is the testator's niece Katherine Falconer Gillanders or Inglis, and to her there are substituted successively her eldest son George and the heirs-male of his body; whom failing, her second son John Gillanders and the heirs-male of his body; whom failing, her third son William and the heirs-male of his body; whom failing, the heirs-male of the body of the institute; whom failing, James Falconer Gillanders of Highfield, the nephew of the testator.

Katherine Falconer Gillanders or Inglis, the institute, survived the testator, and was the first to take under the entail of Newmore. She died in 1872 and was succeeded by her son George, the present appellant, who is now the only person in existence who could claim to succeed under that part of the destination which I have narrated. James Falconer Gillanders, the last of these substitutes, was at the date of the trust-deed heir of entail in possession of the estate of Highfield, which he continued to hold in that character until his death in the year 1881. He was succeeded by his son George, who has disentailed the estate of Highfield, and has conveyed it to trustees for behoof of a series of heirs other than those who would have been entitled under the tailzied destination. But for that circumstance the claim of the appellant to the character of last heir-substitute under the entail of Newmore could not have arisen.

The second part of the trust-destination, to which the present controversy relates, I think it better to quote at length. It runs thus—“and failing the whole persons above specified, then from respect to my deceased grandfather George Gillanders, Esquire, of Highfield, to the heir in possession of the estate of Highfield under the entail thereof for the time, and to the other heirs-substitute in said entail in the order set down in the said entail successively.” These words, which exhaust the line of inheritance, were held by the Lord Ordinary “to be a destination in favour of the persons who should possess, when that part of the destination opened, the character of heirs of entail of the estate of Highfield under the Highfield entail.” If that were in my opinion the true construction of the clause I should agree with his Lordship when he goes on to say, “that being so, I think it follows that that part of the destination is no longer operative, because the Highfield entail is no longer in existence.”

But it appears to me that the words in question cannot be legitimately read as importing a single substitution to that effect.

Omitting the statement of the testator's motive, which cannot in my opinion affect their legal construction, they contain two distinct substitutions separated by the word

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