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Trusts - From: 1200 To: 1799

This page lists 71 cases, and was prepared on 02 April 2018.

 
34 H 8 Cart 144 Br Cases, 240 Mantel's Case Use, Discent, Corone, Estates, Forfeiture, Tail, Escheats [1220] EngR 439; (1220-1623) Jenk 203; (1220) 145 ER 137 (B)
1220


Trusts

[ Commonlii ]
 
Tyrrels' Case (1558) Dyer 155
1558


Land, Trusts
In the case of a use upon a use, the 1535 Statute did not work to execute the second use.
Statute of Uses 1535


 
 The Case of Thetford School and Co; 1572 - [1572] EngR 419; (1572-1616) 8 Co Rep 130; (1572) 77 ER 671
 
Barwick's Case (1597) 5 Co Rep 93b
1597


Trusts
A limitation of a remainder which would emerge by itself at some time in the future was not possible at law. A remainder is void unless it is preceded by some particular freehold estate created by the same instrument.

 
Amand v Bradbourne [1649] EngR 2; (1649-1779) 2 Chan Cas 138; (1649) 22 ER 884 (A)
1649


Trusts, Costs
Trustee sued concerning the Trust in Chancery obtained a Dismission and had Costs paid him as in Course, but the Costs allowed him and taxed were short of his real Costs. After a Bill by the Cestuy qui Trust to have account of the Trust, on Account of his disbursements he shall be aIIowed his true and necessary Costs in the former Suit, and not be concluded, and co, and so ordered.
[ Commonlii ]
 
Woodliff v Drury [1653] EngR 2230; (1653) Cro Eliz 439; (1653) 78 ER 679 (A)
1653


Trusts, Land

[ Commonlii ]

 
 Lady Tyrrell's Case; 1660 - [1660] EngR 174; (1660-1706) 1 Freem Chy 304; (1660) 22 ER 1225 (D)
 
Sir Thomas Bennet, And Sir William Brownlow v Box, Stonehouse and Others [1662] EngR 253; (1662) 1 Chan Cas 12; (1662) 22 ER 669 (B)
1662


Trusts, Equity
Trust Lands no Assets in Equity, tho' the Trust be decreed in Equity.
[ Commonlii ]
 
Henry Goring, And Others v Bickerstaff And His Wife, Everfield By His Guardian Dame Anne Alford, And Alford By His Mother And Guardian [1662] EngR 314; (1662) 1 Chan Cas 4; (1662) 22 ER 665
20 Jan 1662


Trusts
Settlement of a term to uses, with Power to make leases etc
[ Commonlii ]
 
John And Mary Gratwick Infants, By William Gratwick Their Guardian v Thomas Freeman Gent [1673] EngR 54; (1673) Fin H 95; (1673) 23 ER 51 (B)
1673


Trusts
The Father devised Legacies to his children being Infants, and made their Mother Executrix, and died ; she married again, and died : Upon a Bill brought by the Infants against their Father in Law, to have an Account of the personal Estate of their Father, it was decreed against them, because they did not call him to Account in the Life-time of their Mother.
[ Commonlii ]
 
Francis Harmore and Elizabeth His Wife v Doble Brook, Birkenhead Collins, John Hamlin, Tho Hamlin An Infant, By The Said John His Guardian, And George Banister [1674] EngR 26; (1674) Fin H 183; (1674) 23 ER 101 (A)
1674


Trusts, Family
Articles in Marriage to pay 500 pounds with his Daughter by such a ime, and to secure to her all his real and Personal estate when he died; and afterwards he devised all his personal Estate to another, which being contrary to the Articles, that Agreement was deemed to be performed.
[ Commonlii ]
 
Smith and Wife, Hester, Ashton, Daughters of Ralph, And Infants, By Their Guardian v Beatrix Ashton Widow of Richard Ashton [1676] EngR 155; (1676) Fin H 273; (1676) 23 ER 150
1676


Family, Trusts, Land

[ Commonlii ]
 
Ford Lord Grey, Katherine Lady Grey v Katherine, Ralph, And Charles Grey v Ford Lord Grey, And Katherine Lady Grey [1677] EngR 86; (1677) 2 Swans 594; (1677) 36 ER 742
2 Mar 1677


Trusts

[ Commonlii ]
 
Arethusa Lady Dowager Clifford v Earl of Burlington, Lord Clifford and Others [1680] EngR 21; (1680-1687) 2 Vern 379; (1680) 23 ER 841
1680


Trusts
Tenant for life, with power to make a jointure of £1000 per ann, upon marriage, covenants to make a jointure on his wife of £1000 per ann. Afterwards gives a particular of lands mentioned to be £1000 per ann. which are settled for the jointure, but prove to be but £600 per ann. Decreed the jointure to be made up £1000 per ann. by the issue in tail.
Tenant in tail covenants to settle a jointure and dies, issue in tail not bound by the covenant
[ Commonlii ]
 
Donning v Benjamin Le Need Merchant, And Elizabeth His Wife, Aaron Falcon, And Ferry Dubois [1680] EngR 181; (1680) Fin H 448; (1680) 23 ER 243
1680


Trusts
A settlement in Trust for Husband and Wife dec was by Consent of all parties cancelled and the Trustees indemnified
[ Commonlii ]
 
Pullen v Palmer (1696) 3 Salk 207
1696


Land, Trusts
The essential difference between tenants in common and joint tenants is that while tenants in common may hold their lands either by several titles or by several rights, joint tenants hold them by one title and by one right. There is no difference as to the possession and manner of taking profits.

 
Calthorpe v May (1707) 7 Bro Parl Cas 413; (1707) 3 ER 269
1707


Trusts
Intending to marry a second time, C made a settlement on her sons by her first marriage, but without the knowledge of her intended husband. Her second husband took possession of the land in breach of the trust after her death. Held: The two sons by the first marriage were able to enforce the trust, and those claiming through the second husband were liable for rents.

 
Theodosia Skirme Widow, Executrix of Thomas Skirme, Executor of William Wogan, So He Was Executor of Dame Mary Wogan, The Widow And Administratrix of Sir William Wogan, And Also Executrix of Viscountess Purbeck v Meyrick [1710] EngR 43; (1710) 2 Com 700; (1710) 92 ER 1275
2 Apr 1710


Wills and Probate, Trusts

[ Commonlii ]
 
Jones v Westcomb (1711) Prec Ch 316
1711


Trusts
A gift on a contingency which does not occur nevertheless takes effect on the happening of an event which is a fortiori.
1 Citers


 
John Crawfurd, An Infant, By Jane His Mother and Guardian v Archibald Crawfurd Esq [1712] UKHL Robertson_28; (1712) Robertson 28
5 Apr 1712
HL

Scotland, Trusts, Torts - Other
Minor non tenetur placitare - The maxim does not take place in a reduction upon the head of dole, or fraud in the minor's father.
Proof. - A deed found proved to be fraudulently altered upon ocular inspection of the different pieces, and a letter from one of the perpetrators of the fraud.
[ Bailii ]
 
Alexander Robertson Esq of Strowan v Margaret Robertson, His Sister [1712] UKHL Robertson_55; (1712) Robertson 55
4 Jun 1712
HL

Scotland, Trusts, Children
A mother being put in possession of part of her eldest Son's forfeited estate for aliment to younger children, in a question with the Son after the estate restored, it is found that her intromissions, above the current interest of their portions, went in discharge of former interest due thereon and of current interest, but not in payment of principal, or of interest after the intromissions ceased.
Circumstances inferring this crime: though decree taken in the civil action, recourse might also be had to the penal: the pains of battery not remitted by an act of general indemnity.
[ Bailii ]
 
Sir Patrick Home, Baronet v Sir Robert Home, Baronet Et E Contra [1712] UKHL Robertson_47; (1712) Robertson 47
27 Jun 1712
HL

Scotland, Trusts
Circumstances sufficient to reduce deeds upon this ground. Being so reduced they stand as a security only or the onerous causes thereof.
By marriage contract the husband is bound to resign the estate to himself, and the heirs male of the marriage, and inhibition being used thereon he was disabled to dispose of that estate gratuitously, in prejudice of the heir male of the marriage.
This heir male being served Haeres masculus et provisionis to his father is found liable by the Court to warrant his father's deeds, but the judgment is reversed.
A second Son having accepted from his Father a tack of the estate for payment of debts and having afterwards taken a disposition of that estate from his elder brother, the trustee is obliged to count and clear the onerous cause of this disposition, at the suit of the son of the said elder brother, (whom the Court had found to be beir-male.)
[ Bailii ]
 
Sir James Sinclair of Dunbeath, Bart v John Sinclair of Ulbster, Esq [1713] UKHL Robertson_59; (1713) Robertson 59
2 Jun 1713
HL

Scotland, Trusts
Provisions to Children. - A portion being left to a daughter; with a proviso, that she should not dispose of or incumber the same, or interest thereof, till the times of payment should be elapsed; the might, nevertheless, make an alignment thereof, in trust for herself, to have an action carried on to recover the interest.
Appeal brought for delay. - In this case the respondent found entitled to such interest, as he might have entitled himself to by registering the horning, had he not been restrained by the appeal.
[ Bailii ]
 
James Don Esq; v Sir Alexander Don of Newton [1713] UKHL Robertson_76; (1713) Robertson 76
14 Jul 1713
HL

Land, Trusts, Scotland
An estate is entailed by a person to himself in liferent and to his eldest son and the heirs male of his body whom failing to the entailer himself, whom failing to his second and third sons, and the heirs male of their bodies &c. whom all failing to the father's nearest heirs and assignees: another estate is entailed to the second son of the former entailer and the heirs male and female of his body, whom failing to the said former entailer and his heirs male of tailzie and provision in the former entail; after failure of the institute in the second entail and the heirs male and female of his body, the heir male of the first entailer succeeds to the estate contained in the second entail.
Tailzie
An heir of entail prohibited from alienating gratuitously, where the prohibitory, irritant, and resolutive clauses, were referred to as contained in another entail.
At making an entail the institute reconveys to his father an estate formerly settled upon him, and he and his wife discharge an obligation upon the father by their contract of marriage; the institute, nevertheless, cannot gratuitously alter.
[ Bailii ]
 
Robert Middleton, Rector of St Mary's In Colchester v Lieutenant-Colonel John Balfour [1715] UKHL Robertson_167; (1715) Robertson 167
2 Sep 1715
HL

Scotland, Trusts
Heritable and Moveable - A father in 1641, upon his eldest son's marriage, settled an estate upon him and the heirs thereof, reserving a power to burden: the son was infeft, and half the marriage portion paid to the father; but the wife dying without issue, within year and day, the father granted a bond to the son to employ same for his benefit, or to restrict his power of burdening pro tanto; the eldest son also dying, the father settled the estate upon the second son who, after the father's death, granted heritable securities with infeftment to creditors thereon in 1666, upon which apprisings were led in 1670. His son having taken up the succession as heir to his uncle, instead of his father (the second son); at the instance of creditors, the contract of marriage and infeftment were reduced by the Court of Session, but with a clause, that the half of the marriage-portion which has been paid should be a real burden upon the estate: this half was afterwards confirmed by the executor and adjudication taken in 1680. In a competition between the person having right to the heritable bonds and infeftments in 1666, with apprisings thereon in 1670, and the person having right to the half of the marriage-portion, the Court having preferred the latter, the judgment is reversed.
[ Bailii ]
 
George Hamilton, An Infant, and William Hamilton of Grange, His Father, Tutor and Administrator In Law v Captain George Boswell, Brother To David Boswell of Balmutto Deceased [1718] UKHL Robertson_192; (1718) Robertson 192
10 Feb 1718
HL

Trusts
Representation - A disposition is made by a person to one of his daughters, and the heirs of her body, whom failing to-, his heirs and assignees: upon this disposition the daughter is infeft, and dying without issue, her sister is served tanquam legitima et propinquior haeres to the father and her: it is found that the service ought to have been as heir of provision.
Curtesy - An heiress's infeftment, reduced after her death for informality, but not quarrelled in her lifetime, is sufficient to support the curtesy.
[ Bailii ]
 
William Ayton Esq v Dame Margaret Colvill, Widow of Sir John Ayton of Ayton, and Robert and Andrew Ayton Their Sons [1719] UKHL Robertson_221; (1719) Robertson 221
23 Feb 1719
HL

Scotland, Trusts
Representation - An eldest son of a marriage is retoured legitimus et propinquior baeres to his father cum beneficio inventarii. In the inventory he gives up not only the lands settled upon him in his mother's contract of marriage, but also certain other lands; and afterwards brings a reduction of the provisions in a second contract of marriage, alleging, that he was only heir of provision in virtue of his mother's contract of marriage, and as such might still quarrel his father's deeds, the narrative of the retour designing him heir procreated between a certain man and woman; it is found, that he was served heir of lint to his father, and as such could not quarrel any of his father's deeds.
[ Bailii ]
 
John Arratt Late Professor of Philosophy At St Andrews v John Wilson [1719] UKHL Robertson_234; (1719) Robertson 234
23 Mar 1719
HL

Trusts
Trust - Circumstances inferring the trust of a disposition, bearing to be heritable and irredeemable, and upon which infeftment had followed.
The trust being declared, the trustee is ordered to continue in possession, until it be redeemed, or proved that he was paid.
After several interlocutors, holding the appellant as confessed for not deponing, the appeal is brought that he might be reponed to his oath, but the interlocutors are affirmed.
Vis et metus - During the dependance of this process, the trustee having arrested the grantor of the disposition upon one of the debts paid by and assigned to such trustee, and while under caption having taken from the grantor a discharge and renunciation of all trust, and a disclaimer of his action of reduction: this discharge reduced upon the head of vis et metus; and the trustee is ordered to pay 60 l. Scots of expences, before he should be heard in the principal cause.
[ Bailii ]
 
The Commissioners and Trustees of The Forfeited States v Kenneth Mackenzie of Assint, A Minor, By Colonel Alexander Mackenzie, His Curator [1720] UKHL Robertson_263; (1720) Robertson 263
10 Feb 1720
HL

Scotland, Trusts
Papist attainted of Treason - The Act 5 Geo. 1 c. 22. having limited a certain time for preferring exception, against a forfeiture, a person who presented his exceptions as protestant heir of a trustee could not, after expiration of the time limited reply as protestant heir of those for whom the trust was created.
Trust Estate held for a Papist - An estate held in trust for the Earl of Seaforth, a papist, was forfeited to the public by his attainder, and could not be cases up, by the protestant heir.
[ Bailii ]
 
William Morison, of Preston Grange, Esq; v Sir William Scott of Thirlestayn, William Nisbet of Dirleton, and John Scott of Harden, A Minor, By His Guardian [1720] UKHL Robertson_269; (1720) Robertson 269
19 Feb 1720
HL

Family, Trusts
Husband and Wife - A bond, with a clause of annualrent is granted blank in the creditor's name, but delivered to a wife, during the subsistence of her marriage: the husband entails his real estate on the grantor of the bond, and also conveys to him all his personal estate, but was not privy to said bond; in a competition between the executor of the husband, and the executor of the wife, the husband's executor is preferred to said bond: and the wife's executor is ordered to refund what had been paid to her, in her widowhood.
General Disposition - A general disposition of a man's personal estate, made in favour of one who had, without the husband's knowledge, granted a bond to the wife did not release this bond.
[ Bailii ]
 
John Campbell, of Calder, Esq v Ruth Pollock, Alias Campbell [1720] UKHL Robertson_324; (1720) Robertson 324
7 Jun 1720
HL

Trusts, Wills and Probate
Personal and transmissible - A sum appointed by a father to be paid to a son, his heirs, executors, or assignees, at a day certain, was transmissible by the son, though he died before that day.
Pactum Illicitum - An estate is fetded by a father upon his son and his heirs, reserving a life-rent to a certain amount, and by the son's marriage contract the estate is declared to be of a certain annual value: two years after the marriage the son by a deed declares that the estate was not worth so much per annum, but that this was done to please the wife's friends, and he grants bond to pay or allow the father to charge a sum upon the estate for provisions to his younger brothers and fitters, which should be in full of legitim: this was not contra fidem tabularum nuptialium.
Implied Discharge - After granting this bond, the fiar made a new disposition of the estate to the son, in same terms with the marriage-contract; but this was not a discharge of the bond, allowing the father to charge the estate with childrens' provision
Fiar absolute limited - In a son's marriage-contract it is covenanted, on the part of his father that lanas and hereditaments of a certain annual value were to be fettled and assured so as that the same should come to and be vested in the eldest son of the marriage, and other lands and hereditaments to remain to the son's use, reserving the father's life-rent of part: the son was fiar, and by his bond bound the heirs of the marriage.
[ Bailii ]
 
Alexander Lord Saltoun v William Fraser Esq; His Brother, Guardian and Trustee for Alexander Fraser [1720] UKHL Robertson_312; (1720) Robertson 312
16 Jun 1720
HL

Scotland, Trusts
Parent and Child - Tutor and Pupil - Lord Saltoun having left 4000 l. payable at the first term after his decease, to the eldest son of the master of Saltoun, and failing him to the grantor's heirs of entail; and having appointed an uncle of the pupil to be his tutor and curator with a salary during nonage with power to uplift the principal and interest, to employ the money in the purchase of lands, &c.: the pupil's father, the heir and executor of the grantor of the provision, was not obliged to pay over the money to the uncle without security, but to pay it to the Court of Session, who were ordered to by it out in the manner directed by the grant.
[ Bailii ]
 
John Robertson of Goodlyburn, A Pauper v George Earl of Kinnoul [1721] UKHL Robertson_394; (1721) Robertson 394
5 Jul 1721
HL

Scotland, Trusts
Process. - Act and Commission - A pursuer opposes the granting an act and commission for examining the defender, a peer in London, in a matter referred to his oath, on the ground that he being old and poor, could not follow the examination: but the commission is granted notwithstanding.
Trust - A person executes an absolute surrender of his feu, in favour of his superior's son, but alleging qualifications of trust in a separate verbal agreement, the superior swears that he remembered no term of depositation, and the son, the grantee, swears, that he personally gave no consideration for the deed, and that it was not delivered to him, but that every thing was transacted by his father; and he never heard of any conditions or trust: it is found that the depositions did not support the allegations of trust.
[ Bailii ]
 
John Arratt, Esq v John Wilson of Baikie [1722] UKHL Robertson_409; (1722) Robertson 409
21 Feb 1722
HL

Scotland, Trusts
Appeal - In an action of declarator of trust an interlocutor is pronounced, holding a defender as confessed upon an account of charge and discharge, given in by the pursuer, and he is ordered to denude. Afterwards upon the defender's application, the Court allowed him ten days longer to give in his accounts, but before the expiration of these ten days, he brings his appeal against certain interlocutors, and amongst others, against the interlocutors holding him as confest; all which are specially affirmed by the House of Peers. After the determination of the first appeal, the defender applied to the Court to have liberty to give in his accounts in ten days, as allowed by the interlocutor before the appeal: but it was found that his right was extinguished, and that he must denude in terms of the decree affirmed by the House of Lords.
[ Bailii ]
 
James Macpherson, of Killyhuntly v John Macpherson, of Dalrady [1723] UKHL Robertson_435; (1723) Robertson 435
11 Feb 1723
HL

Scotland, Trusts
Trust - Qualifications of trust found to be irrelevant.
[ Bailii ]
 
Alexander Abercromby, Esq; of Glasshaugh, for Himself and The Other Creditors of Alexander Wilson of Littlefield, Deceased v John Innes of Knockorth, and Lewis Donaldson, Writer In Edinburgh, Son, Heir, and Executor of John Donaldson, Deceased [1724] UKHL Robertson_457; (1724) Robertson 457
31 Jan 1724
HL

Scotland, Trusts
Trust - Trustees chosen by creditors, who had a salary for their trouble, having thrown the debtor into prison on a caption, but afterwards liberated him without applying to the creditors for their consent; the debt being afterwards lost, it was relevant to make the trustees liable for the debt that they consented to the debtor's liberation.
[ Bailii ]
 
James Hamilton of Dalzell, Esq; Ex Parte v James Hamilton Brother To William Hamilton, of Orbiestoun, Deceased, and The Creditors of The Said William Hamilton, and James His Son [1724] UKHL Robertson_493; (1724) Robertson 493
18 Apr 1724
HL

Scotland, Trusts
Service of heirs - An estate being disponed to a father and sailing him to his eldest son, and the heirs male of his body, with other subsitutions; and the eldest son having survived the father was infeft thereon, and died afterwards without serving heir to him: the Court found the right to the estate not fully vested in the son without a service, but the judgment is reversed upon appeal.
Death-bed - The Court having found that death-bed could be pleaded by an heir cut off by two prior deeds, and by creditors, the judgment is reversed.
Did, contracting the sickness at the time of executing the deed, constitute death-beds?
Fiar absolute limited - A father grants an absolute dispsition to his son, which is not completed by infeftment or by making up schedules in term, thereof the son afterwards joins with the father in making two new settlements of the estate, and the father who still continued in possession grants and position to a third party, after the son's death; the Court having found these posterior dispositions were not of prejudice to the son's creditors, the judgment is reversed.
[ Bailii ]
 
Sir Alexander Maxwell of Monreith, Bart v Andrew Houston, Esq [1725] UKHL Robertson_539; (1725) Robertson 539
30 Apr 1725
HL

Scotland, Trusts
Vitiation - An objection to a deed that it was erazed in substantialibus is repelled.
Vitious Intromission and Gestio pro Haerede - A person grants an entail of his estate to his son, and his heirs male whatsoever; with the burden of his debts; the son grants a back bond, in consideration of said entail to pay the father's debts: after the death of the father and son, the daughters convey the estate real and personal of their father to a creditor, without making up titles by inventory or confirmation; and the creditor grants bond to protect them against what they had done, and from the debts of their father; the heir male of entail having got back the estate sues the said creditor for debts of the father as a vitious intrometter, in which he obtains decree; and the Court also find the moveable debts due to such intrometter to be extinguished: but their judgment is reversed 5 and the creditor is ordered to account for actual intromissions only.
[ Bailii ]
 
Keech v Sandford [1726] Sel Cas 1 King 61; [1726] EWHC Ch J31; [1726] EngR 954; (1726) 25 ER 223 (C); [1726] EWHC Ch J76
1726
ChD
Lord Harcourt LC, King L
Trusts, Equity
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease from the landlord; and the trustee acted innocently, believing that he committed no breach of trust and that the new lease did not belong in equity to his cestui que trust. Held: A trustee of a lease may not renew a lease for his own benefit but holds the renewed lease upon a constructive trust for the beneficiaries. The court forbade the trustee to take for himself a renewed term under a lease which he held for the benefit of an infant.
Lord Harcourt LC said: "though I do not say there is a fraud in this case, yet he should rather have let it run out, than to have had the lease to himself. This may seem hard, that the trustee is the only person of all mankind who might not have the lease: but it is very proper that rule should be strictly pursued, and not in the least relaxed; for it is very obvious what would be the consequence of letting trustees have the lease, on refusal to renew to cestui que use." The benefit of the lease was assigned by decree to the infant and the trustee, subject to indemnity, made to account for profits.
King L said: "I very well see, if a trustee, on the refusal to renew, might have a lease to himself, few trust-estates will be renewed to cestuis que use."
1 Citers

[ Bailii ] - [ Commonlii ] - [ Bailii ]
 
James Marquis of Clydesdale, An Infant of Tender Years, By James Duke of Hamilton and Brandon His Father v Thomas Earl of Dundonald Et E Contra [1726] UKHL Robertson_564; (1726) Robertson 564
2 Apr 1726
HL

Trusts
Minor - A minor, though with consent of his curators, could not gratuitously alter the settlements of his estate.
Death-bed - Neither could he gratuitously alter them on death-bed.
Tailzie - A tailzie executed in 1716, not registered in the Register of Tailzies, sustained in 1725 as a title on which to serve heir of provision.
Return - A clause of return to the grantor of a deed alter failure of heirs male, did not disable the heir in possession gratuitously to alter in favour of has daughters.
Destination simple - Nor did a simple destination to heirs male in several deeds hinder this.
Prescription. - Base Infeftment - Haereditas Facens. - A base infeftment is taken by a son on dispositions from his father in 1653 and 1656. In 1680 the father, after the son's death, resigns these lands by a procuratory of resignation, and takes new charters from the crown, under which the lands are held till 1725, without making up titles under the son's base infeftment. The objection of prescription is repelled. An objection that though the base infeftment contained lands in two counties it was only registered in one, is repelled. And it is found that these lands bring still in haereditate jacente of the son, a title to them could only be made up by a service to him.
Apparent Heir - One passing by an apparent heir three years in possession not liable to implement such apparent heir's gratuitous bond of tailzie.
Construction - A deed is executed, by which the grantor obliges himself and his heirs male, and of tailzie, provision, &c. upon failure of heirs male of his own body, and heirs male of the descendants of his body, to resign the same for infeftments to his daughters and the heirs male of their bodies without division, &c.; in a competition between the heir male of the body of his eldest daughter, and a person claiming as heir male or the defendants of his body, the former is preferred.
[ Bailii ]
 
Major Thomas Cochrane v Robert Lord Blantyre [1726] UKHL Robertson_558; (1726) Robertson 558
4 Apr 1726
HL

Costs, Trusts
Costs and Expences. -
Trust bonds granted conditionally, if the grantor should procure two commissions held by the grantee, of which he then executed resignations, are reduced upon the ground, that though the grantor held the said resignations in his hands, he did not procure the new commissions in virtue thereof, but in consequence of other means and considerations: but the Court having refused the pursuer his costs, the judgment is reversed, and it is ordered that the Court do case these costs to be taxed and ascertained and forthwith paid to the pursuer.
Appeal - The pursuer having craved that the bonds might be delivered up to him by the clerk, but the defender having stated that he meant to appeal, and the Court having ordered the bonds to remain in process, and not to be delivered up without a fresh warrant, their judgment is affirmed.
[ Bailii ]
 
David M'Culloch, of Pilton v Christian M'Culloch [1727] UKHL Robertson_611; (1727) Robertson 611
17 Apr 1727
HL

Trusts
Aliment by a mother to her son, if granted animo donandi or no - A father grants bond of provision to a younger son, in a certain sum, binding himself and his heirs to aliment him till 21, or to pay interest on the bond the mother marries a second husband, and in her marriage-contract stipulates a power of alimenting her son, out of her jointure from her first husband: in a process by the assignee of the younger son, against his eldest brother, for interest, as not being alimented by the father's heirs, such interest is decreed, and the mother is found to have alimented the younger son gratis.
Litigious - The eldest son, pending this action, paid his mother's second husband a sum for his younger brother's aliment, but it is found that the discharge taken for that sum, being granted pendente processu, did not influence the cause.
Bond - Termly Penalty - A bond of provision by a father contains a clause of annual-rent, but no penalty on failure: in an action of damages for not punctual payment of interest, and expences thereon incurred, the defence that the bond contained no termly penalty is overruled.
[ Bailii ]
 
Archibald, Duke of Douglas v William, Lord Strathnaver [1730] UKHL 1_Paton_32; (1730) 1 Paton 32
25 Feb 1730
HL

Trusts
Tailzie. - Reparation - An heir of entail having made up titles in fee-simple to the entailed estate, and burdened it with debts, contrary to the provisions of the entail, which had not been recorded,-his representatives were found liable, at the instance of the next substitute, for reparation and damages, to the effect of disburdening the estate of those debts.
[ Bailii ]
 
Bradley v Powell (1736) Cas temp Talb 193; [1736] ER 733
1736


Trusts
Creditors of a beneficiary were unable to make a claim on trust property where the interest was dependent upon a contingency which had not occurred.

 
John Nairn of Greenyards, Esq v Margaret, Lady Dowager Nairn Et Alii, Her Creditors and Heirs of Entail The Lord Advocate, On Behalf of His Majesty [1736] UKHL 1_Paton_192; (1736) 1 Paton 192
14 Jun 1736
HL

Scotland, Trusts
Tailzie - Clause - In an entail in favour of a daughter, nominatim, a clause "prohibiting the heirs female of the said Margaret, her body, or any other of the heirs male and of tailzie above written, (except the heirs male of the said Margaret's body,) to sell, &c." found to debar the daughter from selling.
[ Bailii ]
 
Legg v Goldwire [1736] EngR 81; (1736) Cas T Talbot 20; (1736) 25 ER 637
10 Nov 1736

Talbot LC
Equity, Trusts, Family
By Lord Chancellor Talbot - Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.
[ Commonlii ]
 
Archibald Murray, Advocate, Et Alii, Trustees for The Creditors of William Scott Blair, of Blair v Hamilton Blair, Esq [1739] UKHL 1_Paton_251; (1739) 1 Paton 251
4 Apr 1739
HL

Trusts
Conjunct fee and liferent - A wife's estate being disponed in her marriage contract "to the husband and wife, in conjunct fee and liferent, and to the sons of the marriage; which failing, to the heirs male of the body of her father; which failing, to the heirs female of the marriage; which failing, to the heirs male or female of her body of any other marriage; which failing, to the husband, and the heirs male of his body of any other marriage; which failing, to the wife's heirs whatsoever;"-the fee found to be in the wife
Heir of provision - Found that the heir of the marriage may gratuitously dispose of the estate conveyed in the marriage contract.
[ Bailii ]

 
 Proctor v Bulstrode; 7-Feb-1742 - [1742] EngR 24; (1742) 2 Coop T Cott 534; (1742) 47 ER 1291 (C)
 
Watson, Trustee For Heir of Hamilton of Redhouse, and The Other Creditors v Glass, and Other Children of The Deceased etc [1744] UKHL 6_Paton_681
5 Dec 1744
HL

Trusts, Land
Tailzie - Clause, Provision to Daughters - Obligation - "Heirs Female." - An entail bound the heirs of entail "to pay his daughters and heirs female," 10,000 merks, The entailer had only one daughter, and his son, who had succeeded under the entail, having fallen into debt, his trustee objected to pay this provision, on the ground that it was conceived only in favour of such daughter as should succeed as "heir female" Held her entitled to the provision, and affirmed in the House of Lords.
[ Bailii ]
 
Anne, Countess of Ruglen; and William, Earl of March v Lord Archibald Hamilton, Et Alii [1745] UKHL 1_Paton_381
21 Mar 1745
HL

Trusts
Tailzie. - Condition. - Provision to Heirs and Children.-
A power being given to the heir of entail in possession to burden the lands with provisions to younger children,-how far these provisions are effectual, upon such heir denuding (in virtue of a clause to that effect) in favour of another heir of entail? Found by the Court of Session that such heir of entail was not bound to relieve the lands of the burden. Not determined in the House of Lords.
Found that it was not a fair and proper exercise of the power, whereby the provision was to be effectual only against the heir of entail on whom the estate devolved, and not on the granter and his heirs.
[ Bailii ]
 
Trafford v Boehm [1746] EngR 746; (1746) 3 Atk 440; (1746) 26 ER 1054 (B)
7 Mar 1746


Trusts

[ Commonlii ]
 
William Sutherland, of Little Torbol, Esq v Alexander Gordon of Ardoch, Esq Et Alii [1751] UKHL 1_Paton_493
7 Mar 1751
HL

Scotland, Trusts
Provision to Heirs and Children. - Fiar absolute and limited.-
A disposition in a marriage contract to the heir of the marriage in fee, with an obligation to infeft, and absolute warrandice, imports only a right of succession, and not a jus crediti, in a question with onerous creditors.
Inhibition.-
A right of succession under a marriage contract cannot by inhibition be made effectual against onerous creditors of the father.
[ Bailii ]
 
Grizel Craik, Daughter of Adam Craik, and Grand-Daughter of William Craik v Jean Craik, Daughter of William Craik [1753] UKHL 1_Paton_542
21 Dec 1753
HL

Scotland, Trusts
Marriage Contract- Powers of Father- Fiar- Res Judicata.-
Held where a father had bound himself by the marriage contract to convey his estate to the heirs male of the marriage, this did not prevent him from making an entail in favour of the heir male and series of substitutes. Circumstances in which points raised were res judicata.
[ Bailii ]
 
Lady Dowager Forbes v Lord James Forbes [1765] UKHL 2_Paton_84
29 Jan 1765
HL

Family, Trusts
Reduction - Error in Essentials of Agreement - Lifkrenter's Powers and Liabilities - Bona Fide Consumption.-
Where the husband and wife, by marriage articles, conveyed the estate to themselves, and the survivor of them, for the wife's liferent use allenarly, reserving power to grant provision to daughters to the extent of £3000, and failing the husband exercising this power to the wife: Held, (1 st,) That though the husband had granted provisions to his daughters in exercise of this faculty, to the extent only of £2000, that the wife was entitled, after his death, to execute an additional bond to the extent of £1000. (2 nd), That where the liferentrix had entered into agreements restricting her liferent rights, through error in essentials, that she was still entitled to claim her rights as originally settled. (3 d), That bona fide percepti et consumpti was not pleadable, and the respondent accountable, for the whole rents, feuduties, and casualties since the date when her right accrued, reversing the judgment of the Court of Session: But, (4 th), That she was liable for the interest of the heritable debts on Puttachie and Pittendriech.
[ Bailii ]
 
Dufour v Pereira (1769) 1 Dick 419; (1769) 2 Harg Jurid Arg 304; [1769] EngR 63; (1769) Dick 419; (1769) 21 ER 332
1769

Lord Camden LC
Wills and Probate, Trusts
The court was asked as to the validity and effect of a single joint will. Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: “The parties by mutual will do each of them devise, upon the engagement of the other, that he will likewise devise in manner therein mentioned. The instrument itself is the evidence of the agreement; and he, that dies first, does by his death carry the agreement on his part into execution. If the other then refuses, he is guilty of a fraud, can never unbind himself, and becomes a trustee of course. For no man shall deceive another to his prejudice. By engaging to do something that is in his power, he is made a trustee for the performance, and transmits that trust to those that claim under him." and "There is no difference between promising to make a will in such a form and making his will with a promise not to revoke it"
1 Citers

[ Commonlii ]
 
Sir John Douglass, Bart v Hugh Dalrymple, &C [1770] UKHL 2_Paton_187; (1770) 2 Paton 187
26 Jan 1770
HL

Trusts
Absolute Disposition - Trust.-
A party disponed certain lands to his agent, in order, as he stated, to qualify him to vote in the county election, but held no written obligation under his hand to redispone. Held that the absolute disposition, together with the law agent's accounts, amounting to £1400 due him, foreclosed all idea of trust, unless this were proved by writing under the trustee's hand, in terms of the act 1696.
[ Bailii ]
 
Dr Andrew Heron v John Vining Heron [1770] UKHL 2_Paton_189; (1770) 2 Paton 189
31 Jan 1770
HL

Trusts
Succession - Deed - Implied Revocation.-
A father executed a settlement in form of an entail, in favour of his eldest son, and his heirs-male; whom failing, to his second son and his heirs-male, &c., but reserved power and faculty to himself to affect or burden the fee of the lands: Held that he was entitled to execute a subsequent disposition of the estate in favour of his second son, passing over the eldest son; reversing the judgment of the Court of Session.
[ Bailii ]
 
Henry Wedderburn, Esq, Second Son of Charles Wedderburn of Gosford v Sir Peter Halket of Pitfirran, Bart, Alexander Hart, His Curator Ad Litem, and John Wedderburn of Gosford, Repondents [1770] UKHL 2_Paton_231; (1770) 2 Paton 231
19 Mar 1770
HL

Scotland, Trusts
Entail - Power to Alter Order of Succession.-
Entail taken to the makers and longest liver in liferent, and to their eldest son in fee, whom failing his second son, &c., with a prohibition against altering the order of succession; but no restraint against selling or charging the estate with debt. The eldest son, who succeeded after the maker, finding his own eldest son an idiot, altered the order of succession, and gave the estate to his second son, and the heirs precisely marked out by the original entail. Held, that as he was fiar of the estate, he could exercise this power, more especially seeing that the deed so executed had not in view fraudulently to alter the order of succession, but merely to provide for a contingency that had not been contemplated by the maker.
[ Bailii ]
 
Alexander Livingston, Esq v James Warrock [1773] UKHL 6_Paton_790; (1773) 6 Paton 790
29 Apr 1773
HL

Scotland, Trusts
Entail - Jus Tertii. - In the entail of the estate of Westquarter, the question was, Whether James Livingston could sell the estate, under the following destination of the entail, "to and in favour of the said Countess, and James, Earl of Findlater, her husband, and longest liver of them two, for the Earl, his liferent use allenarly, and to James Livingston and the heirs male of his body, whom failing, to his heirs male whatsoever?" James Livingston was, by express clause, prohibited from selling; and in a former appeal it was found he could not sell ( vide ante vol. II., p. 108.) This was a part of the estate which, from the state of the title, it was thought he could sell; and it having been sold, the next heir after his death brought a reduction. Held, that where the title of two parties is derived from one author, neither party can object to the right of the common author.
[ Bailii ]
 
Messrs Annand and Colquhoun, and Their Assignees, and Messrs Gibson and Balfour, Merchants, Edinburgh, and Their Trustee v Helen Chessels or Scott, and James Scott, Her Husband [1775] UKHL 2_Paton_369
24 Mar 1775
HL

Insolvency, Trusts
Jus Mariti - Exclusion of Do.- Where a party conveyed his heritable and moveable estate to his daughter, in trust for behoof of herself and children, excluding her husband's jus mariti in the event of his insolvency; Held that his creditors were not entitled to claim any of his moveable estate, the same being vested in the daughter; but that they were entitled to claim the rents of the heritable, and interest of the moveable estate up to the date of the husband's insolvency, on which event his right of administration ceased, in terms of the express provision in the settlement.
[ Bailii ]
 
James Cuthbert of Farnese v Anna Mackenzie or Paterson, and Richard Paterson, Her Husband, for His Interest [1775] UKHL 2_Paton_377
13 Nov 1775
HL

Trusts
Deed - Tutory - Expiry of Do.- A deed contained a conveyance of subjects and effects to the wife, and a particular assignation of certain bonds therein, "to her, and her heirs and assignees," with provision, that after paying debts, the residue was to be enjoyed by the widow in liferent and child in fee, giving to the widow the power of distribution and division, and also nominating her tutrix to the children. Held, where the widow had recovered payment of one of the bonds, after the death of her husband, and after her second marriage, that she had only a liferent of the same, and that she could not recover payment, and validly discharge that bond, either in her own right, or as tutrix for her children, her office of tutrix expiring on her second marriage.
[ Bailii ]
 
Charles Ward v Robert Hartpole [1776] UKHL 3_Bligh_470; (1776) 3 Bligh 470
1776
HL

Trusts
GH, a tenant for life in a marriage settlement, is thereby empowered to make leases for lives of lands in Ireland, at the best rent, without fine; and a power was also given, with the consent of trustees, to raise any sum of money. The trustees, in pursuance of the power, consent that G. H. should, by mortgaging all or any part of the lands, or in any other manner he should think fit, raise any sum of money not exceeding 5,000 l.
[ Bailii ]
 
Jones v Morgan [1783] EngR 55; (1778, 1783) 1 Bro CC 206; (1783) 28 ER 1086
24 Mar 1783


Trusts
(Lincoln's Inn Hall) Devise to trustees to pay debts, then to stand seised to the use of A "for Life, without impeachment of waste ; after his decease to the use of the heirs male of his body, severally, respectively, and in remainder, is an estate-tail in A. Where tenant for life pays off an incumbrance upon the estate, he shall be considered as a creditor for the money so paid ; but where tenant in tail pays, it is in exoneration of the estate of which he may make himself absolute owner. This is merely a general rule of presumption or primary inference ; and therefore liable to be rebutted by circumstantial evidence to the contrary.
[ Commonlii ]
 
Wilson v Piggott [1789] EngR 2306; (1789-1817) 1 Ves Jun Supp 278; (1789) 34 ER 788
1789


Trusts

[ Commonlii ]
 
Alsager v Rowley [1789] EngR 20; (1789-1817) 1 Ves Jun Supp 439; (1789) 34 ER 864 (B)
1789


Trusts

1 Cites

1 Citers

[ Commonlii ]
 
Higinbotham v Holme [1789] EngR 1205; (1789-1817) 2 Ves Jun Supp 550; (1789) 34 ER 1221 (G)
1789


Trusts

[ Commonlii ]
 
Alsager v Rowley [1789] EngR 21; (1789-1817) 1 Ves Jun Supp 652; (1789) 34 ER 964
1789


Trusts

1 Citers

[ Commonlii ]
 
Miss Frances Hay, A Minor, and Her Curators v Robert Hay, Esq, of Drumelzier [1789] UKHL 3 - Paton - 142
25 Jun 1789
HL

Land, Trusts
Entail - Succession - Heirs Male. - Circumstances in which the words " heir male" in an entail, received a strict technical interpretation, though they had been used with the same meaning, so far as appeared from the deed, as that of " heirs male of the bodies" of the substitutes, which had been used in other parts of the deed.
[ Bailii ]
 
Andrews v Partington (1791) 3 Bro CC 401
1791


Trusts, Wills and Probate
Unless the contrary intention is expressed, where at the time of the trust, the class of beneficiaries is not identified, it will close as soon as the first member becomes entitled to take his share.

 
Lord Walpole v Lord Orford (1797) 3 Ves Jun 402; [1797] EngR 489; (1797) 3 Ves Jun 402; (1797) 30 ER 1076
1797
HL
Lord Loughborough LC, Lord Camden L.C
Contract, Trusts
The court considered the difference between an obligation accepted in law, and what was described as 'an honourable engagement'.
1 Cites

1 Citers

[ Commonlii ]
 
Grindley v Barker (1798) 1 Bos & Pul 875; [1798] EngR 112; (1798) 1 Bos & Pul 229; (1798) 126 ER 875 (B)
1798

Eyre CJ
Administrative, Trusts
Where a number of persons are entrusted with powers not of mere private confidence, but in some respect of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.
1 Citers

[ Commonlii ]
 
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