Fordyce v Bridges
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 516
ROLLS COURT
S. C. on appeal 2 Ph. 497; 41 E. R. 1035; 2 Coop. t. Cott. 324; E. R. 1180. See also 1 H. L. C. 1; 9 E. R. 649. See Salusbury v. Denton, 1857, 5 W. R. 866.
[90] fordyce v. bridges. April 25, 30, May 1, 2, 4, 5, Nm. 24, 1846; Feb. 27, 1847. [S. C. on appeal, 2 Ph. 497 ; 41 E. R. 1035 ; 2 Coop. t. Cott. 324; 47 E. R. 1180. See also 1 H. L. C. 1 ; 9 E. R. 649. See Salisbury v. Denton, 1857, 5 W. R. 866.] | A testator directed his trustees to invest his personal estate in lands in England or Scotland, the limitations of which were to be different. Held, that this was a diseretion of sueh a nature, that this Court could not execute it. nBEAV. 91. FORDYCE V. BRIDGES 517 Validity of a bequest in England of personal estate to be laid out in lands in Scotland according to limitations creating a perpetuity. A testator devised and disposed of his English and Scotch estates in strict settlement, and he directed his trustees and the survivor, and the executors, administrators and assigns of such survivors, to invest his personal estates in lands in England OR Scotland, to be settled according to the uses of his estates in those countries respectively. And he empowered the person for the time being in possession of his English estates, or his guardian, to appoint new trustees, who were to have the same powers as the old. After the testator's death, the principal part of the property was invested in Scotland. In 1833, the trustees being all dead, the representative of the survivor declined to act. The English estate then stood limited to A. an infant, in tail, with remainders over, and the Scotch estate to A. for an unalienable estate in fee, with remainders to his heirs male, with remainders to B., C., D., &c., the Plaintiff arid others, for similar unalienable estates in succession. In 1833 A. filed a bill against the representative of the surviving trustee and against B., and some other parties coming subsequent in the Scotch estate to the Plaintiff, but omitting the Plaintiff, insisting that too much of the personalty had been invested in Scotland. B. appeared voluntarily and put in his answer. Before the decree, A. had a guardian appointed, and, by the decree made in 1833, the existing trustee, at his own request, was discharged, and the Master was directed to appoint new trustees; and it was declared, that the uninvested personalty ought to be invested in England. A. afterwards executed disentailing deeds, and obtained payment of the whole fund. By the death of A. and the other preceding persons without issue, the Plaintiff became entitled in possession to the Scotch estates, and he thereupon instituted this suit to be relieved from the decree of 1833. Held, that he was not bound by that decree, and, secondly, that he was entitled to obtain relief by original bill. The following is a short statement of the facts of this case, which, however, will be found stated more in detail in the judgment of the Court. The testator, John Dingwall, who was resident in England, had real estates in England and Scotland, and also considerable personal property. In September 1807 he executed a procuratory of resignation, and deed of disposition and settlement, according to the forms of the law of Scotland, by which he settled the Scotch estates, strictly, upon various persons and their heirs, in a mode [91] which, according to the Scotch law, created a series of perpetual fees, those in remainder being capable of being barred by the persons entitled to the previous estates. By his English will, dated the 13th of June 1808, he settled the English estates in strict settlement in the English form ; and he gave his personal estate to his three trustees and executors, and he directed them and the survivors, and survivor of them, and the executors, administrators, and assigns of such survivor, to lay it out in the purchase of estates in England or Scotland, and settle such as should be in England, on the trusts of the English devised estates, and such as should be in Scotland upon the trust declared by the deed of tailzie of the Scotch estates; arid that, until a proper purchase should be found, the personalty was to be invested in the public funds, or at interest upon real securities in England or Scotland, and the interest thereof was to be paid to the person entitled to the rents of the English estates so to be purchased, in case the same had been then actually purchased and settled. The will contained a power, authorizing the person for the time being entitled to the possession, or to the actual receipt of the rents of the devised estates, if of age, or for his guardian during minority, to appoint new trustees, in case of their death or refusing to act; and the new trustees were to have the same power's, capacities, &c., as the old. The testator died in 1812 ; his personal estate amounted to about £260,000, of which the trustees invested about £173,000 in lands in Scotland, and £1500 in lands in England, and there remained £100,000 uninvested. After the testator's death, and until 1833, John Dingwall, the testator's great-.nephew, was tenant for life of [92] the English estates, and of the estates to be ^purchased there, and the institute under the deed of tailzie of the Scotch estates and 518 FORDYCE V. BRIDGES 10BEAV.9J. the estates to be purchased there. He entered and continued in possession until hi& death, in 1833, leaving an only son, John Duff Dingwall, an infant about seventeen years of age, who became tenant in tail in possession of the English estates. The Scotch estates, in effect, then stood limited as follows: to John Duff Dingwall, remainder to his heirs male; remainder to Dr. Arthur Dingwall Fordyce, an old man aged eighty-eight, with remainder to his heirs male, with many remainders over,. none of which could, by the Scotch law, be barred. At that time Arthur Dingwall Fordyce had issue a son, William, who had three children, Arthur, William, and the Plaintiff Alexander. The trustees had all died, and Alexander Crombie, the representative of the survivor, refusing to act, in April 1833 a bill was filed by John Duff Dingwall, the tenant hi tail, against Crombie, and against Arthur Dingwall Fordyce and Patrick Dingwall, a remote remainder-man, of the Scotch estate, who alone was within the jurisdiction ; and also against other persons alleged to be out of the jurisdiction. The present Plaintiff, however, and other persons interested under the Scotch entail, were not made parties to the suit. The bill alleged, that the trusts had not been properly executed, that the trustees had invested a larger part of the residuary estate-in Scotland than they ought to have done, and it asked the Court to declare, whether the estates in Scotland had been properly purchased, and whether it was proper to-give any directions, in consequence of the disproportionate large amount of the residue invested in lands in Scotland, and that the remaining estate might be invested, in the purchase of real estate in England. [93] Alexander Crombie and Patrick Dingwall were alone served with a xubp i iiat and put in their several answers without oath. Arthur Dingwall Fordyce, then eighty-eight years old, was never served with process, but an appearance gratis was entered for him, and his answer was put in without oath or signature. In the answer he insisted that the purchases of the real estates in Scotland, out of the proceeds of the residnary estate of the testator, had been properly made, and ought not to be disturbed. In July 1833, before the decree, Mr. G-ordon was appointed guardian of the infant Plaintiff. By the decree, dated the 3d of August 1833, after directing certain inquiries, Mr. Crombie was, at his own request, discharged from being a trustee; and it wa& referred to the Master to approve of new trustees. And it was declared that, under the circumstances of the case, and having regard to the purchases of land in Scotland made by the trustees, the testator's residuary personal estate, then remaining uninvested, ought to be invested in the purchase of real estates in England, and for the purpose of such investment, the parties interested, the new trustees and the guardian, were to be at liberty to lay proposals before the Master. The proceedings under the decree were carried on before the Master without notice to the Defendant Arthur Dingwall Fordyce or his sons, who were substitute heirs of entail. Arthur Dingwall Fordyce died at the age of eighty-nine years on the 21st of April 1834, and a few days afterwards (the 26th) the Master made his general report. The uninvested residuary personal estate appeared to be of very large amount. The Master approved of William Gordon, Peter Rose, and James [94] Alexander Chahner to be new trustees ; but no proposal had been laid before him to invest any part of the residuary personal estate in the purchase of real estate. By the order, made on further directions, on the 4th of June 1834, it was directed that the estates should be transferred to the new trustees, and this was done by deeds executed in the following month, on the 28th and 29th of July 1834. John Duff Dingwall attained his age of twenty-one years on the 15th of October 1836. In November 1836 he executed disentailing deeds, and on the 21st of the same month, he petitioned to have the whole of the funds transferred and paid to him ; and by an order, dated the 24th of November 1836, after providing for the payment of the legacy duty and costs, it was ordered that the funds should be transferred and; paid to him accordingly. John Duff Dingwall died without issue, in October 1840, and his property became vested in the Defendant, Sir Henry Bridges. 10 BEAV. 9. FORDYCE V. BRIDGES 51 9 On the 20th of November 1841 Arthur Dingwall Fordyce, the eldest grandson of Dr. Arthur Dingwall Fordyce, the party to the cause, and who, upon the death of his grandfather, became the...
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