Earl of Balfour, Petitioner
| Jurisdiction | Scotland |
| Judgment Date | 11 April 2002 |
| Date | 11 April 2002 |
| Docket Number | No 42 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Trusts—Entail—Liferent—Liferenter born after trust deed but before codicil to trust deed—Whether entitled to fee simple—Entail Amendment (Scotland) Act 1848 secs 47,481
Sections 47 and 48 of the Entail Amendment (Scotland) Act 1848 provide that where under a trust deed a party born after the date of the trust deed is in possession he is not affected by any restrictions in the trust deed and he may apply to the court to be declared fee simple proprietor.
A trust deed entered into in 1923 imposed restrictions by way of liferent on trust property. The petitioner was born in 1925. In 1927 the trust deed was varied by a codicil. By the time of the petition, the liferented trust property was held by the petitioner. The petitioner petitioned the court for declarator that he was fee simple proprietor. The petitioner argued that the date of the relevant deed for the purposes of secs 47 and 48 was the date of the deed. The sixth respondent argued that the deed and codicil required to be read together and the relevant date was the date of the codicil.
Held (1) the trust settlement by virtue of which the petitioner held the liferented estate was composed of the deed and the codicil taken together, and the date of the trust settlement must be taken to be the date of the codicil (2) since the petitioner was born before the date of the codicil, he was not entitled to take advantage of sec 47 or 48, and petition refused.
The Earl Of Balfour petitioned the court to declare that he was entitled to the fee simple of subjects referred to in a trust deed. The trustees and Roderick Francis Arthur Balfour lodged answers.
Cases referred to:
Binning (Lord), Petitioner 1984 SLT 18
Black v WatsonUNK (1841) 3 D 522
Malcolm's Trs v MalcolmSCSC 1948 SC 616, 1950 SC (HL) 17
Miller's Trs v MillerSC 1958 SC 125
Muir's Trustees v WilliamsSC 1943 SC (HL) 47
Moray (Earl of), Petitioner 1950 SC 281
Textbooks referred to:
Candlish Henderson on Vesting pp 17–18
M'Laren on Wills...
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Earl of Balfour v Keeper of the Registers of Scotland and Others
...decree declaring him to be the fee simple proprietor of the lands and the barony of Whittingehame and others ("the heritable property"): 2002 SLT 981. The appellant is the Right Honourable the Fourth Earl of Balfour. The heritable property is at present held for him in liferent by the trus......