Earl of Moray
| Jurisdiction | Scotland |
| Judgment Date | 07 March 1950 |
| Date | 07 March 1950 |
| Docket Number | No. 30. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Mackintosh.
Trust—Termination—Testamentary trust conferring liferent on successive beneficiaries—Purchase of heritable property by trustees after death of testator—Beneficiary of full age born before testator's death but after execution of deed conferring liferent—Whether beneficiary entitled to be declared fee simple proprietor—Fee and Liferent—Entail Amendment Act, 1848 [Rutherfurd Act] (11 and 12 Vict. cap. 36), sec. 47.
Under sec. 47 of the Entail Amendment Act, 1848, where, in virtue of any deed dated after 1st August 1848, land or estate is in the lawful possession, either directly or through trustees, of a party of full age born after the date of the deed, such party shall not be affected by the conditions and limitations therein contained but be deemed to be the fee simple proprietor, and, on an application to the Court by summary petition, may obtain an act and decree declaring him fee simple proprietor.
A Scottish earl died in 1895, leaving a trust-disposition and settlement (dated in 1881) and relative codicils, by the first of which (dated in 1891) he directed his trustees to hold the residue of his estate in all time coming, or so long as the law might permit, for payment of the income to the successive holders of the earldom. In 1947 the trustees invested part of the residue by purchasing superiorities. Thereafter the holder for the time being of the earldom, who had been born in 1894, presented a petition under sec. 47 for declarator that he was the fee simple proprietor of the superiorities.
Held by the Lord Ordinary (Mackintosh) that the petitioner was entitled to the declaration craved, in respect (1) that sec. 47 applied to any estate which was heritable property at the date when the petition was presented, and (2) that the petitioner had been born after the date of the relevant deed, viz., the first codicil, whose date for the purposes of the section was the date of its execution and not the date of the testator's death.
The Right Honourable George Philip Stuart, 14th Earl of Moray, died on 16th March 1895, leaving a trust-disposition and settlement dated 20th December 1881, and five relative codicils, the first of which was dated 16th November 1891.
By the first codicil, which was not revoked or altered by any of the later codicils, he provided as follows:—"And (lastly) I do hereby revoke and recall the directions contained in the last
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