BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs M. A. Menzies or Campbell (Now Clarke) and Others (Campbell's Trustees) v. Campbell's Trustees and Others [1871] ScotLR 9_160 (15 December 1871) URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0160.html Cite as: [1871] ScotLR 9_160, [1871] SLR 9_160 |
||
[New search] [Printable PDF version] [Help]
Page: 160↓
Where a testator had left his
Page: 161↓
whole heritable and moveable estate to trustees, directing them (1) to hold the heritable estate during his widow's lifetime for her liferent use; (2) to realise his moveable estate, and invest it in land or heritable securities, and to hold the same during the lifetime of his nephews and neices, and the longest liver of them; (3) after the death of his widow, and until the death of the longest liver of his said nephews and neices, to accumulate the annual rents and produce of his said heritable estate, and also of his realised moveable estate, however invested; and (4) after the death of his widow, and of the longest liver of his said nephews and neices, to execute a deed or deeds of entail of his heritable estate, and also of lands and heritages to be purchased with the proceeds of his moveable estate, and with the accumulations arising from the rents and produce of his heritable estate, “or from previous rents, interests, and annual produce, as said is.” Held, in a competition between the trustees, the widow, and the heirs ab intestato both in heritage and moveables, for the free rents and produce of the moveable estate accruing between the date of the testator's death and that of his widow,—that the said free rents and produce were disposed of by direct implication, and that therefore the claim of the heirs ab intestato must be rejected; and that it was clearly the testator's purpose that they should be accumulated as well before the widow's death as after it (she being handsomely provided for both by the deed and otherwise); and that therefore the trustees' claim must be preferred to the widow's.
This action of multiplepoinding was raised by Mrs Maria Anna Menzies or Campbell (now Clarke) and others, testamentary trustees of the late William Gunning Campbell, Esquire of Fairfield. The nature of the questions involved is thus stated by the Lord Ordinary ( Gifford) in the Note to his interlocutor:—“The fund in medio in this case consists of the surplus income of the personal estate of the late William Gunning Campbell, after deducting all burdens and charges affecting the same, and that for the period from 24th November 1867, the date of Mr Campbell's death, to 31st December 1869. The amount of the fund in medio, as at 31st December 1869, is £2734, 0s. 2d., conform to the condescendence by the trustees, which was duly approved of on 28th October 1870.
“The question in the present process is, To whom does this surplus income belong, and how is it to be applied? And this question turns upon the construction and effect of the trust-disposition and settlement and codicils of the late William Gunning Campbell.”
The clauses of the said trust-disposition and settlement and codicils most material to the decision of this question are as follows:—The conveyance in trust of the truster's whole heritable and moveable estate was declared to be for the following purposes, viz.—In the first place, for payment of debts, certain legacies and annuities. In the second place, after payment of all the debts, legacies, and annuities left by me, and the necessary expenses of the execution of this trust; and which debts, legacies, annuities, and expenses I hereby direct to be paid or provided for out of my moveable and personal estate, my said trustees shall hold the free annual income of my said estate of Fairfield and others hereby disponed, after deduction and payment of minister's stipend, &c., and also after deduction of the sum of two hundred and fifty pounds sterling per annum, in order to meet and pay the annuity of that amount provided to my said wife by our contract of marriage, dated the 17th day of March Eighteen hundred and forty-five, for the use and behoof of the said Mrs Maria Anna Menzies or Campbell, for her liferent use after my decease; and I direct my said trustees and executors accordingly to allow and pay to the said Mrs Maria Anna Menzies or Campbell, my wife, the free annual residue of my said heritable estate during her lifetime, after my decease; and I also direct and appoint them to allow her the free liferent use and enjoyment of my house of Fairfield, and offices thereto belonging, and of the furniture and whole other moveable effects therein. In the third place, my said trustees, so soon as convenient after the decease of the said Mrs Maria Anna Menzies or Campbell, and after the decease of the longest liver of my nephews and nieces, sons and daughters of my late brothers Charles Hay Campbell and Napier Campbell, shall execute a deed of entail of the lands and others before disponed, so far as undisposed of by me, and of such other lands as shall belong to me in fee-simple,” in terms of certain deeds of entail referred to. “In the fourth place, upon my death, or as soon thereafter as conveniently may be, my whole moveable or personal estate (but excepting the household furniture, plate, paintings, prints, and whole other moveables in my house of Fairfield, and which my said trustees may, if they shall deem it proper and expedient so to do, hand over to the institute or heir of entail for the time, to be held and retained for the use and behoof of himself and the succeeding heirs of entail in the said lands and estate of Fairfield and others), shall be sold and disposed of by my surviving and accepting trustees, and converted into money, and by them the free proceeds thereof shall be laid out and invested (at once or from time to time) either in the purchase, in their own names as trustees foresaid, of such lands and other heritages as my said trustees may in the exercise of a sound discretion deem suitable and proper for being entailed as after mentioned, or upon heritable security or securities, also always in their own names as trustees foresaid,—all to be held and retained by them during the lifetimes of my said nephews and nieces, sons and daughters of my late brothers Charles Hay Campbell and Napier Campbell, and during the lifetime of the longest liver of my said nephews and nieces. In the fifth place, my said trustees are hereby appointed and enjoined, and they shall, from and after the decease of my said wife, and during the lifetimes of my said nephews and nieces, sons and daughters of my said two brothers Charles Hay Campbell and Napier Campbell, and during the lifetime of the longest liver of my said nephews and nieces, retain and accumulate, according to their discretion, the free rents, interest, and annual produce that may arise during the period between the death of my said wife (or my own death, if she shall predecease me), and the death of the longest liver of my said nephews and nieces, from my said lands of Fairfield and others foresaid, herein specially described, and hereby disponed, and also from the said lands and others hereby appointed to be purchased, and also from the said investments on securities of the monies arising from my personal or moveable estate, means, and
Page: 162↓
effects, appointed to be realised and for the purpose of accumulation, my said trustees shall, if they see fit, and from time to time, according to their own discretion, lay out and invest the said free rents, interest, and annual produce arising during the said period between the death of my said wife (or my own death, if she shall predecease me), and the death of the longest liver of my said nephews and nieces, upon heritable securities, in their own names as trustees foresaid. In the sixth place, upon the death of my said wife, and of the longest liver of my said nephews and nieces, or as soon thereafter as conveniently may be, my said trustees shall call up and realise the monies invested on securities as aforesaid, in so far as not previously called up and realised, and with the proceeds thereof, and with any accumulations of the rents and produce arising from my said lands of Fairfield and others, or from previous rents, interest, and annual produce as said is, my said trustees shall, as soon as they may deem it expedient and beneficial so to do, purchase in their own names, as trustees foresaid, such farther lands and heritages as they, in the exercise of a sound discretion, may deem suitable for being entailed, either along with my lands of Fairfield and others foresaid, or separately, and of which lands and other heritages so to be purchased by my said trustees with the monies arising from the produce of my said moveable estate, and from the various accumulations aforesaid, I hereby direct, appoint, and ordain my said surviving and accepting trustees, with all convenient speed, to execute a deed or deeds of entail,” in terms of the said deeds already referred to. The Lord Ordinary, in the Note already referred to, proceeds as follows:—“There are four claimants to the surplus income forming the fund in medio:—(1) Mr Campbell's trustees claim the whole fund for the purpose of accumulating the same, and ultimately applying the same in the purchase of lands, to be entailed in terms of the settlements. (2) The truster's widow Mrs Campbell, now Mrs Clarke, claims the whole fund, as falling under the liferent, express or implied, created in her favour by the truster. (3) Captain Leveson G. A. Campbell of Fairfield, the heir-at-law of the truster, claims the whole fund, as being undisposed of by Mr Campbell's settlement, and being heritable destinatione, and thus falling to the heir-at-law ab intestato; and (4) Captain Campbell and Mrs Hunter, the next of kin of the truster, claim the fund, if held to be moveable, as falling to them ab intestato.
“The Lord Ordinary, after the debate, thought it right that the case should be intimated to a fifth possible claimant, viz., the party who would be the heir of entail in possession if the entail were now in operation, and who had not been cited or called as a defender. This was done; a curator ad litem appointed, and the minor and his curator have now lodged a minute declining to make any separate claim, but insisting in that made by the trustees.
The whole parties interested are thus in the field. The decision of the question is necessary for the guidance and exoneration of Mr Campbell's trustees, who have quite properly brought the present action.”
The trustees, the first claimants above mentioned, pleaded—“(1) According to the sound construction of the trust-deed, the income of the personal estate constituting the fund in medio accruing since the death of the truster must be applied for the ultimate purpose of the trust, viz., to the acquisition of lands to be entailed. (2) According to the sound construction of the trust-deed, the income derivable from the estate accruing between the truster's death and that of his widow must be accumulated by the claimants, his trustees, and applied by them for the ultimate purpose of the trust above mentioned.”
Mrs Maria Anna Menzies or Campbell, now Clarke, the truster's widow, the second claimant, pleaded—“(1) The whole estate of the truster being disposed of by the trust-deed, and there being no direction to accumulate until after the death of the wife, there is thus granted in her favour an implied liferent of the whole estate, except in so far as the same may be expressly destined to other purposes. (2) The residue of the personal estate, after payment of debts, expenses, legacies, and annuities, being heritable destinatione, was heritable in the intention of the truster in so far as the liferent of the widow is concerned; and she is entitled to the liferent of the whole residue of the estate, that entire residue being heritage in the sense of the trust-deed, or at all events falling under the description of ‘estate disponed’ by that deed. (3) In the event of the trustees retaining moveable estate in their hands sufficient for the purpose, they were bound to pay the claimant's annuity of £250 a-year out of the moveable estate as well as the other annuities.”
Captain Campbell, the third claimant, as heir-at-law, and also as one of the next of kin of the truster, pleaded—“(1) The income arising from the moveable estate of the truster between the date of his death and the death of his widow being undisposed of by his will, the same falls to be taken up by his heir ab intestato. (2) The said moveable estate being expressly directed to be applied by the trustees in the purchase of lands to be entailed, the income arising therefrom falls to the truster's heir-at-law, (3) In the event of its being held that the said income is moveable, the same will fall to the next of kin of the truster. (4) In terms of the said trust-deed, the annuity of £250 provided to the truster's widow by her marriage-contract falls to be paid out of the income of the estate of Fairfield; and no grounds are stated for making the same a charge upon the fund in medio. (5) The claimant, as heir-at-law of the truster, is entitled to be preferred to the whole fund in medio in terms of his claim, or at least he is entitled, as one of the truster's next of kin, to be preferred to a share thereof along with the other next of kin.”
Mrs Catherine Campbell or Hunter, the fourth claimant, as one of the next of kin of the truster, pleaded—“(1) The income arising from the moveable estate of the truster between the date of his death and the death of his widow being undisposed of by his will, the same falls to be taken up by his next of kin ab intestato. (2) The income from the said estate being moveable, the same falls to the next of kin of the truster. (3) The claimant, as one of the truster's next of kin, is entitled to be preferred to a share of the fund in medio along with the other next of kin.”
The Lord Ordinary pronounced the following interlocutor:—
“ Edinburgh, 13 th July 1871.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, claims of parties, minute for Leveson Granville Campbell and his curator ad litem, and whole process, ranks and prefers the
Page: 163↓
claimants, the accepting and acting trustees of the deceased William Gunning Campbell, to the whole funds in medio, in terms of their claim No. 12 of process; repels the whole other claims to the said fund in medio, and decerns; finds no expenses due in the competition to or by either party as against the competing parties, but finds and declares that the trustees of the said William Gunning Campbell shall be entitled to payment out of the fund in medio of their whole expenses of raising and bringing the action into Court, of adjusting the fund in medio, and of the expenses incurred by them in the competition, as the same shall be taxed by the Auditor of Court, to whom remits the account, when lodged, to tax and report.” Note After full argument and consideration, the Lord Ordinary is of opinion that Mr Campbell's trustees must be preferred to the whole fund in medio, to be applied by them to the ultimate purpose of the trust, namely, the acquisition of lands to be entailed in terms of the settlements. He has therefore preferred the trustees in terms of their claim, but as the question was a fair one to try, he has not found the unsuccessful claimants liable in expenses. The trustees will retain their whole expenses out of the fund in medio.
The grounds of the Lord Ordinary's judgment are shortly the following
(1) He is of opinion that the question is entirely dependent on the terms of Mr William Gunning Campbell's settlements. It is a questio voluntatis testatoris. What did the testator intend should be done with the surplus income of his moveable estate? and this intention must be gathered from the terms of his trust-disposition and settlement and codicils, read as a whole.
It may be true that the testator may not have directly provided for the case which has arisen. He may not have contemplated that there would be any surplus income, such as that now in question, and here, as in many cases, it may be difficult to gather from the testator's words his will in reference to a matter which was not presented to his mind. Still, there is no alternative. The duty of the Court is to get at the testator's will through his testamentary writings, read in the light of surrounding circumstances, which are fairly and fully disclosed in the present case. Extrinsic and parole proof of the testator's intention is inadmissible, and was not asked by any of the claimants in the present case.
(2) Mr Campbell's testamentary writings form a universal settlement of his whole estate, heritable and moveable. There is a universal and unlimited conveyance to his trustees of this whole estate, heritable and moveable of every description, and his whole estate is conveyed for the purposes specified in the deeds. There is no exception; Mr Campbell certainly did not intend to die intestate in reference to any portion of his estate, or in reference to any part of the income arising therefrom. It is true intestacy may arise even under a universal settlement, by reason of special provisions therein. But intestacy in such cases is never to be presumed, and can only be reached when it is the necessary and unavoidable result of the directions or provisions of the deed.
(3) Where residuary legatees are appointed, or where there are, either in form or in substance, provisions which amount to a disposal or appointment of residue, the residuary legatees, or the parties interested in the residue, will always in dubio be preferred to the heir-at-law, or to the next of kin of the testator ab intestato. On this principle, lapsed legacies fall, not to the next of kin, but to residuary legatees, even where the residuary bequest is only of residue, after deducting all legacies. In short, the testator is presumed, unless a contrary construction be absolutely unavoidable, to prefer the parties and the objects mentioned in his settlement to his heirs or next of kin ab intestato, whom it is the very object of his settlement to exclude. It is unnecessary to refer to cases or authorities in support of this general principle, for it was not disputed. The whole argument turned upon the special terms of Mr Campbell's settlements.
(4) The Lord Ordinary is of opinion that the terms of these settlements exclude the claims both of the truster's heir-at-law and of the truster's next of kin.
The object of the truster may be generally stated thus:—He wished to make certain liferent and other provisions for his widow, and for certain other persons, to whom he bequeathed legacies or annuities; and after his widow's death, and after the death of all his nephews and nieces, he wished to create an entail and found an entailed estate, consisting of his lands of Fairfield and others, and of other lands to be acquired, with the whole accumulated residue of his means and property, all to be entailed and settled upon the series of heirs specified in the deed. This seems to the Lord Ordinary to be the short result of the whole settlements. The detailed provisions and directions are somewhat complicated, but, reading them together, their effect seems to be as now stated. Whatever was not required for the special and preferential purposes of the trust, was to go to enhance the entailed estate, the creation of which was the testator's ultimate purpose.
In this view, the Lord Ordinary thinks that the claims both of the heir-at-law and of the next of kin are inadmissible. There is no undisposed of residue, either for the heir-at-law or for the next of kin. The testator did not die intestate as to any part of his estate, either capital or income, and there is no difficulty in disposing of the whole income forming the fund in medio under one or other of the purposes of the trust.
The Lord Ordinary will immediately advert to the special terms of the settlement, as, in his opinion excluding both the widow's claim and that of the heirs-at-law; but, apart from all specialties, he thinks the heirs-of-law, both in heritage and in moveables, are completely cut off by the general conception and obvious meaning of the whole settlement.
(5) If the Lord Ordinary is right in holding that the truster's heirs ab intestato are excluded, both by the general purpose and by the special terms of the settlement, it becomes unnecessary to consider whether, supposing the fund in medio intestate succession, it would go to the heir-at-law or the next of kin. The Lord Ordinary thinks it can be claimed by neither.
He may add, however, that in case he should be wrong in the view now taken, and in the event of the fund in medio being held undisposed residue, he could not hold it to be heritable destinatione. This would be to make it both testate and intestate at once under the same deed. If the direction to purchase heritage applies to it, then it must be heritage, the rents of which go to make up, like other investments, the ultimate entailed estate.
Page: 164↓
If intestate succession at all, its character must be fixed at the testator's death, and being the proceeds of his moveable estate, the Lord Ordinary thinks it must be held to be moveable succession. This point, however, need not be further considered.
(6) The Lord Ordinary thinks that the widow, the only other claimant, is excluded by the special terms of the settlement, and by the limited and precise character of the provisions made to her by the truster.
The widow's provisions are, first, her jointure under the marriage-contract of 17th March 1845; and second, in addition thereto, the liferent of the free annual residue of the truster's heritable estate, the liferent of the house of Fairfield, and of the furniture and moveables therein. It is quite inconsistent with these provisions to give the widow, in addition, the liferent of the testator's free moveable estate. This is not given to her by the deed, either expressly or by implication, and yet that is virtually what she claims in the present process. It is impossible to construe a bequest of the liferent of heritable estate as including a liferent of the moveable estate also, especially when the heritable and moveable estates are dealt with in the deeds throughout separately and distinctly, with separate precise directions regarding each.
(7) The great argument urged, and with great force, both by the widow and by the next of kin, is, that there is no direction to accumulate the free proceeds of the moveable estate during the widow's life; that such an accumulation is not to begin until after the widow's death; and that, consequently, free income accruing during the widow's life is not to form part of the ultimate entailed estates, but must be otherwise disposed of.
Now, without denying the force of the argument, the Lord Ordinary is of opinion that, even if the deed had stood absolutely without any direction to accumulate the free income of the moveable estate, such direction must be presumed from the purposes of the trust. The truster wanted everything to be entailed which was not needed for his preferential or primary bequests. A direction to apply moveable estate at a particular time in the purchase of lands to be entailed, necessarily means moveable estate, with accrued interest or income. The interest or income is just an accessory of the principal.
But the trust-deed does not leave this matter to a mere inference. The Lord Ordinary reads the settlement as expressly directing the income of the moveable estate to go with the principal.
By the fourth purpose, the whole moveable or personal estate is directed, ‘upon my death, or as soon thereafter as convenient,’ to be sold and disposed of (excepting the furniture, &c.), and the proceeds laid out or invested, either in the purchase of lands suitable for entailing, or on heritable securities. all to be held and ‘retained by them during the lifetimes of my said nephews and nieces, sons and daughters of my late brothers, Charles Hay Campbell and Napier Campbell, and during the lifetime of the longest liver of my said nephews and nieces.’ This is a precise direction, and the Lord Ordinary thinks that the moveable estate sold, or the securities representing it so to be held and retained, includes not only the securities themselves, but the interest accruing thereon. It would be a very forced construction to read the provision as a direction to hold the principal sums secured only, but not the interest, or to hold the lands purchased, but not the rents. Principal and interest, lands and rents together, are to be held and retained till the time appointed. Here it is worthy of notice that the widow is not mentioned at all. The time fixed is the death of the longest liver of the testator's nephews and nieces, and this is the time when accumulations are to be invested and the entail ultimately settled.
In entire accordance with this view, the sixth purpose of the trust provides, that on the death of the widow, and of all the truster's nephews and nieces, the trustees are to call up all sums lent on security, and with the proceeds thereof, and with the ‘accumulations of rents and produce arising from my said lands of Fairfield and others, or from previous rents, interest, and annual produce,’ to buy more land to be entailed as aforesaid. Now, the expression ‘previous rents, interest, and produce,’ must mean previous to the accumulation of Fairfield rents, &c., and as Fairfield is liferented by the widow, the word previous must refer to accumulations during the widow's life. But such accumulations can only be accumulations from the moveable estate, and thus the Lord Ordinary finds here almost an express direction to accumulate the free moveable income. The same result is reached on comparing the other clauses of the deed, although the inference is probably less direct.
On the whole, the Lord Ordinary has come to be pretty clearly of opinion that the free moveable income must be applied in exactly the same way as the free moveable estate, and this necessarily leads to the judgment he has pronounced.
(8) A farther question will almost certainly ultimately arise under the provision of the The-lusson Act, which prohibits accumulation for more than twenty-one years, or for a longer term than the life of the settler, or the minority of any person living at the settler's death. This question, however, does not arise in the present process. The accumulations from 1857 to 1869 are undoubtedly lawful; the illegality will not commence at soonest before November 1878; and it is unnecessary to decide now what class of heirs or next of kin will then take the accumulations struck at by the statute.”
Against this interlocutor the widow Mrs Clarke reclaimed.
Lord-Advocate ( Young) and J. Campbell Smith for her.
Authorities cited—Blackstone, book ii, 1, 20 (Stephen's ed., i, 621); Cockshott v. Cockshott, 20 Jan. 1846, 2 Collier, 432; Roe v. Summerset, 5 Burr. 2608, and Blackstone's Rep. ii, 692; Black-well v. Bull, 1 Keen, 176.
Solicitor-General ( Clark) and Fraser, for the trustees, referred to Douglas v. Douglas, Dec. 21, 1843, 6 D. 318; Humphreys, Jan. 14, 1867, 4 Law Reports, Eq. Ser. 475, and 6 Jarman, 3d ed., 497; Sturgis v. Campbell, June 19,1861, 23 D. 1128, and 3 Macph., H. of L., 70; Purcell v. Newbigging, Nov. 25, 1856, 19 D. 71.
Millar, Q.C., and Blair, for Captain Campbell, the heir at law. Authorities— Dick v. Gillies, July 4, 1828, 6 S. 1065, Weir, 2 Macph. 1006; Sommerville's Trustees v. Gillespies, July 6, 1859, 21 D. 1148.
Adam for Mrs Hunter, one of the next of kin. Authorities cited— Cowan v. Turnbull's Trustees, June 13, 1845, 7 D. 872, and H. of L., 6 Bell's Ap., 222; Lord v. Colvin, Dec. 7, 1860, 23 D. 111 (Lord Curriehill's opinion).
Page: 165↓
At advising—
The leading question—whether it is disposed of or not—depends, I think, entirely upon the construction of the settlement, as indicating the intention of the testator. In this no general question of law is involved, nor is there any special rule of law applicable to the point, except the very common-place one, that effect is in the first place, and above all things, to be given to the will of the testator. Now, it is material at the outset to consider what is the general purpose of the settlement. The testator conveys to trustees his entire estate, heritable and moveable, and the leading object in view is to create the largest entailed estate which he possibly can out of the materials at his disposal. There are, however, certain other peculiarities which we must not omit to notice. For instance, he, at one and the same time, left to his widow a most handsome jointure, and also manifested an extreme objection to all his nephews and neices, being at pains to exclude them under all possible circumstances from the succession. Excepting his widow's liferent provision, and some other unimportant legacies and annuities, nothing is to come into the enjoyment of any beneficiary until the death of the last survivor of these nephews and neices. It is true that statutory enactment may interfere with the accomplishment of this desire, but such was the testator's wish nevertheless. Now, keeping this fact in view, let us consider the different purposes of the settlement. The first purpose is not merely the ordinary one for payment of debts and funeral expenses, but it is also for the payment of certain legacies and annuities, not large indeed, but various. The second purpose relates to the provision in favour of the widow. On this I have no remark to make, excepting to say, that the widow's liferent interest is expressly restricted to the estate of Fairfield, and to the use of the house and furniture therein, at Fairfield. The lady had a separate provision out of another entailed estate. This it was not necessary to mention, but between the two she was left amply provided for.
It is desirable to consider the third and sixth purposes together, because both come into operation at the same point of time, that is, after the decease of the widow and the longest liver of the nephews and neices. Neither the third nor the sixth can be carried into execution until both these events occur. But when they do, the testator directs, in the third purpose, that his trustees shall execute a deed of entail of the lands and others before disponed, “so far as undisposed of by me, and of such other lands as shall belong to me in fee-simple,” in favour of a series of heirs, and under fetters and restrictions carefully detailed. In the sixth purpose he gives directions to his trustees, at the same time, to lay out, if they have not already done so, the whole proceeds of his moveable estate, with any accumulations of the rents of his lands of Fairfield and others, or of previous rents, interest, and annual produce, on the purchase of other lands and heritages, to be entailed in the same manner and upon the same series of heirs as he before directed in the third purpose regarding the lands of Fairfield. He contemplates that these entails may possibly be made in one deed, but, at the same time, he recognises the possible necessity of two or more deeds of entail. And, accordingly, he speaks in this purpose of “a deed or deeds of entail.” But in whatever form his wishes are carried out, there can be no doubt, taking the two purposes together, that his intention was that the whole estate is to be settled on the same series of heirs, and be subjected to the same fetters, and to form one united entailed estate. So far the testator's intention is perfectly clear, and the time at which these two purposes are to be carried out is distinctly fixed at the death of the widow and the longest liver of the nephews and neices.
But the two intermediate purposes, the fourth and fifth, depend upon a different event, or events. The fourth purpose is to receive effect “on my death.” The fifth upon “the decease of my said wife, and during the lifetimes of my said nephews and neices.” They are to be carried into execution therefore at quite different times from the third and sixth purposes. Now, what he provides in the fourth purpose is this, that upon his death, or as soon thereafter as conveniently may be, his whole moveable and personal estate should be sold and disposed of, and the free proceeds laid out and invested, either in the purchase of lands and heritages, to be afterwards entailed as already mentioned, or on heritable security, all to be held and retained by the trustees during the lifetime of his said nephews and neices, and the longest liver of them.
Now, it is on the consideration of this clause chiefly that this question depends. His personal estate is to be converted into money, and then that money is to be invested in land, or landed securities. Nothing is said expressly in the clause about the disposal of the free annual income. The widow consequently says that the proper implication from the clause, taken in connection with the preceding one bestowing on her a liferent of the heritage, is to give her a liferent of the whole estate, heritable and moveable. I think that claim may be disposed of, in the first place, without difficulty. It may be observed that the trustees are directed to hold and retain the said moveable estate, when realized and invested as aforesaid, either in land or heritable securities, during the lifetime of the nephews and neices, and the longest liver, but not during the lifetime of the widow. The absence of that direction appears to me very material in the question, for where a liferent is intended to be given to a widow, the ordinary and natural direction to the trustees is to hold the estate during the lifetime of said widow, and not of any other third party or parties. This is studiously omitted, because the time during which the trustees are directed to hold is carefully specified. The estate of Fairfield, which is given to the widow in liferent, is specially directed to be held during the widow's lifetime; they are not to entail it during her life, even if the last survivor of the nephews and neices should predecease her. But here, supposing the last survivor of the nephews and neices to predecease
Page: 166↓
Now, there is a very strong argument in favour of the latter view, deducible from the terms of the fifth purpose. Because after the decease of the widow, and during the lifetime of his said nephews and neices, there is an express direction to the trustees to accumulate the free rents and produce both of the estate of Fairfield and of the lands or securities purchased with the proceeds of the moveable estate. The inference attempted to be drawn is, that for the previous period between the truster's own death and his widow's, it was not his intention that his trustees should accumulate the produce of his moveable estate, or its equivalent in land or landed securities. This is a strong argument, but it is not conclusive. Keeping in view the ultimate purpose in the mind of the testator, which was to create as extensive an entailed estate as possible for the future enjoyment of certain heirs of entail, carefully excluding those who now claim as heirs ab intestato, we see that if these interests or annual produce are held to be undisposed of, they must go exactly to the very parties whom the testator wished most to exclude. And, notwithstanding the speciousness of this argument, I think there are strong presumptions on the other side, that whatever his moveable estate might yield when realised and reinvested, it was de futuro to form one great corpus to be invested in land for the purpose of being entailed. And his purpose was constantly disclosed throughout the deed to make this entailed estate as large as possible. I therefore come to the same conclusion as the Lord Ordinary, that the produce of this moveable estate was intended, even during the lifetime of the widow, to be accumulated, just as after her death. I confess I do not receive much confirmation in this view from the words in the sixth purpose, commented upon by the Lord Ordinary. I think the phrase one of very doubtful meaning, especially in the clause in which it occurs. And it is as likely to refer to accumulation under the fifth clause as to the implied accumulation under the fourth. But, quite independently of this argument, I think there is ample evidence throughout the whole deed to lead us to the conclusion that it was the intention of the testator to accumulate this income of his moveable estate during his widow's lifetime. That intention is so far restrained by law, but so far as that special law does not apply it must receive effect.
A different case is made in favour of the widow. I am not prepared to say that the presumption is against the widow. If, on reading the deed as a whole, I find that the truster's intention is not to limit the widow's liferent to a particular fund or part of the estate; and if the deed itself contain
Page: 167↓
It tends to the solution of this question to fix, in the first instance, as I think the Court may do without difficulty, that Mr Campbell's widow has no right to any part of these funds. I think that this follows clearly from the terms of the trust-deed. A right could only be derived to the widow through words of direct bequest, or an implication so clear as to be equivalent. I perceive none such in the deed, but directions wholly to the contrary.
I consider the widow limited by the most express words to the “free annual income of my said estate of Fairfield and others hereby disponed,” she also obtaining the liferent use of Fairfield House and the furniture. There can be no doubt as to what is comprehended in “my said estate of Fairfield and others hereby disponed.” It comprises simply the lands given under that general name which form the subject of previous disposition in the deed. It cannot, by any stretch of construction, or on any but a mere fanciful theory, be made to comprehend the annual proceeds of the moveable estate, or the produce of any investments on which the funds belonging to that estate are laid out.
The inquiry then comes to be, what is to be done with the annual proceeds of the moveable estate in a. question with Mr Gunning Campbell's heir or executor ab intestato? In other words, are these annual proceeds disposed of by the settlement, and how? Or are they undisposed of residue to fall to the legal representatives? This question is, in my apprehension, to be determined by soundly construing the particular deed in question. The case of any other deed cannot aid in solving the case of this one, except, at the utmost, by furnishing illustrations or analogies which may go to aid the construction. The intention of the testator, in the particular deed, is, as it appears to me, the only legal rule of decision.
It is undoubted that Mr Gunning Campbell directed the capital of his moveable estate to be employed in the purchase of lands to be entailed. He does so in express terms, the moveable estate being, under the fourth purpose of the trust-deed, to be realised as soon after his death as conveniently might be, and afterwards employed in such purchase, although the execution of the intended deed of entail was not to take place till after the death, not merely of Mr Campbell's wife, but of certain nephews and nieces specifically mentioned. In the meanwhile the moveable estate, being converted into money, shall, it is said, “be laid out and invested at once, or from time to time, either in the purchase in their own names, as trustees foresaid, of such lands and other heritages as my said trustees may, in the exercise of a sound discretion, deem suitable and proper for being entailed as after mentioned, or upon heritable security or securities, also always in their own names as trustees foresaid, all to be held and retained by them during the lifetime of my said nephews and nieces.” I think the fair meaning of this direction is, that not only the sums invested, but the annual proceeds from such investments, shall be retained in the hands of the trustees till the time, and for the purpose, of the intended purchase. It is often the only fair inference from a direction to set aside certain funds for a particular purpose, that the intermediate fruits from these funds go along with the capital for the intended purpose. Nothing being said to the contrary, I think that such is the fair inference deducible from the terms of the fourth purpose of this trust-deed.
There follows the fifth purpose of the trust, but this, as I read it, contains nothing at variance with the provisions of the fourth purpose just referred to. Under this purpose the testator primarily refers to the rents of Fairfield and others to arise after his wife's death, and before the death of the last surviving nephew or niece. These proceeds are to be accumulated for the intended purchase, “and” (it is added) “also from the said lands and others hereby appointed to be purchased, and also from the said investments on securities of the monies arising from my personal or moveable estate.” The instruction to accumulate all these during the period posterior to the death of his wife, does not, I think, in the least interfere with the prior instruction, as I read it, to retain and accumulate the proceeds of the moveable estate from the period of his own death downwards. Each fund, I think, still retains its own separate period of accumulation.
Finally, under the sixth purpose Mr Campbell' directs his trustees, at the death of his last surviving nephew or niece, to call up and realise the securities on which the moveable estate was invested, and to purchase the lands to be entailed “with the proceeds thereof, and with any accumulations of the rents and produce arising from my said lands of Fairfield and others, or from previous rents, interest, and annual produce, as said is.” Combining this clause with those going before, and reading the whole, not after a strained literal interpretation, but according to a fair construction of the testator's meaning, I arrive without any doubt at the conclusion that the proceeds of the moveable estate, from Mr Gunning Campbell's death downwards, were not undisposed of residue, but were expressly directed to be retained and accumulated with the capital of that estate for the purchase of the lands to be entailed.
I am therefore of opinion that the interlocutor of the Lord Ordinary should be affirmed.
The Court adhered, and refused a motion, on the part of Mrs Clarke and the heirs-at-law, that the expenses of all parties should be paid out of the fund in medio, on the ground that the process really had been raised for the guidance and direction of the trustees, and could not have been prosecuted unless they had appeared as contradictors.
Page: 168↓
Solicitors: Agents for the Trustees— Tait & Crichton, W.S.
Agent for Mrs Campbell (now Clarke)— Alexander Stevenson, W.S.
Agents for Captain Campbell— Hunter, Blair, & Cowan, W.S.
Agents for Mrs Hunter— A. & A. Campbell, W.S.
