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 desired it to be understood that the destination to J. F. G., as well as the subsequent destination to the heir in possession of the estate of Highfield, 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, in which they disponed the lands of Newmore to the series of heirs other than the heirs of entail of Highfield in the very 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 as they stood at the time were then enumerated in their order.
Held (rev. judgment of Lord Kyllachy) that the trustees had not acted ultra vires in making the destination of the estate of Newmore 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.
[1894] SLR 32 – 164
Bailii
Scotland
Trusts
Updated: 11 December 2021; Ref: scu.613197