In his trust-settlement a testator directed his trustees to execute a deed of entail of his estate of Newmore to and in favour of a series of heirs therein specified, ‘whom failing to my nephew J F G, Esquire, of Highfield, and failing the whole persons above specified, then from respect to my deceased grandfather G G, 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 said entail successively, declaring that my object and intention is that, failing the above series of heirs named by me, then the said lands and estate hereby conveyed are to be held by the heir of entail of the estate of Highfield along with the said estate of Highfield.’
In a codicil the truster expressed the desire that it should be understood that the destination to J F G, ‘who is now in possession of the estate of Highfield under the entail thereof,’ as well as the ‘subsequent destination to the heir of entail in possession of the said estate of Highfield under the entail thereof for the time, and to the other heirs-substitute in the said entail,’ was made by him out of respect to the memory of his late grandfather G G of Highfield.
The trustees executed a deed of entail by which they disponed the lands of Newmore to the series of heirs other than the heirs-of-entail of Highfield in the words of the destination contained in the trust-deed, ‘whom failing to J F G, Esquire, of Highfield, who is the heir now in possession of the estate of Highfield under the entail thereof executed by G G, Esquire, of Highfield, . . and failing the said J F G, then to the other heirs-substitute in said entail of Highfield in the order set down in said entail respectively, viz.’ – the heirs-substitute in the Highfield entail being then enumerated in their order.
The heir of entail who succeeded to the estate of Highfield after J F G, disentailed that estate, and conveyed it to trustees for behoof of a series of heirs different from those called to the succession in the original entail.
Held (aff. judgment of Second Division) that the testator, in directing the estate of Newmore to be entailed on the heirs-substitute in the Highfield entail, had not made it a condition of their right to succeed to Newmore, that when the succession opened to them they should be in possession of Highfield as heirs of tailzie, and therefore that the trustees had acted in conformity with the testator’s directions in making the destination to the heirs of entail of Highfield in the terms above specified, and that that destination did not become inoperative when the estate of Highfield was disentailed.
Judges:
Lord Chancellor (Herschell), Lord Watson, Lord Ashbourne, Lord Macnaghten, and Lord Shand
Citations:
[1895] UKHL 478
Links:
Jurisdiction:
Scotland
Trusts
Updated: 11 June 2022; Ref: scu.634057