James Farquhar Gordon and Others, Trustees and Executors of the deceased David Clyne, Appellants. - Tinney-James Russell; David Clyne (poor), Respondent, - A. Haldane
| Jurisdiction | England & Wales |
| Judgment Date | 18 March 1839 |
| Date | 18 March 1839 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 26
APPEAL FROM THE COURT OF SESSION, SCOTLAND.
Mews' Dig. i. 350, 431; xi. 115. S.C. 6 C. and F. 539. As to pauper appeals to the House of Lords, see Annual Practice, 1901, Vol. II. 660; as to non-appearance of parties, see Sherburne v. Middleton, 1842, 9 Cl. and F. 72; and as to costs, St. O.H.L. 10 and Manchester, etc., Ry. Co. v. Doncaster (1897), 1 Q.B. 117.
Death - bed.
[72] APPEAL FROM THE COURT OF SESSION, SCOTLAND. JAMES FARQUHAR GORDON and Others, Trustees and Executors of the deceased DAVID CLYNE, Appellants.-Tinney-James Russell; DAVID CLYNE (poor), Respondent,*-A. Haldane [18th March 1839]. [Mews' Dig. i. 350, 431; xi. 115. S.C. 6 C. and F. 539. As to pauper appeals to the House of Lords, see Annual Practice, 1901, Vol. II. 660; as to non-appearance of parties, see Sherburne v. Middleton, 1842, 9 Cl. and F. 72; and as to costs, St. O.H.L. 10 and Manchester, etc., By. Co. v. Lancaster (1897), 1 Q.B. 117.] Death-bed.--A party, in the event of his predecease, made a conveyance to his parents and the survivor, whom failing, to any persons whom he might name, whom failing, any person they might name. His parents predeceased him. leaving a trust conveyance of their whole property in favour of trustees named. He thereafter executed a deed on death-bed, conveying his whole estate to trustees named, declaring the purposes, and revoking all former settlements so far as they interfered therewith.-Held (affirming the judgment of the Court of Session) that the first deed, neither singly, nor taken in connection with the second deed, was effectual to disinherit the heir, and that the death-bed deed could not be coupled with the first, or with the first and second deeds, so as to exclude a challenge of it by the heir. Practice.-In a reduction the defender pleaded certain pleas, which he designated preliminary. A record was ordered to be made up on these pleas, upon which the defender reclaimed, when the Court (on the ground that the do-fences pleaded as preliminary were the only defences pleadable in causa upon which it might be necessary to make up a record) adhered. The record was then prepared, and the defender repeated his former pleas, but without again designating them as preliminary. The Lord Ordinary " repelled the dilatory defences," [73] reserving a question arising out of these pleas to be discussed with the defences on the merits, and found expenses due. On reclaiming, the Court adhered. Held, that an appeal against the judgment was competent without leave of the. Court. Execution Pending Appeal.-Incompetent to appeal against a warrant of the * 15 D., B., and M., 911. 26 clyne's trustees v. clyne [1839] maclean & bobinson, n Court of Session for interim execution and payment of costs, so as to stay execution of such order as has been thereon made. Paiiper-Costs.--No objection to a warrant for interim execution that a printed copy of the petition has not been laid before each of the Judges, nor is it an objection to such warrant for payment of costs, that the party obtaining the warrant has sued in forma pauperis, and that his own agent alone signed the bond of caution. Pauper.-A respondent suing in forma pauperis, allowed to be heard on presenting his printed cases at the bar, but costs refused him on that account, although there were otherwise sufficient grounds for awarding them in his favour. On the 22d of August 1815 the late Mr. David Clyne, S.S.C., executed a disposition whereby, in the event of his predeceasing his parents without leaving lawful heirs of his body, he gave, etc. etc., to and in favour of William Clyne his father and Margaret Swanson his mother, " during their mutual lives, and the longest liver of them two; and after the death of the longest liver, to and in favour of any person or persons, or for such uses, ends, and purposes, as I (Mr. Clyne) may name and appoint by any deed I may execute at any time of my life, and even ou death-bed; and in case of my dying without having executed such deed, then to and in favour of such person or persons as shall be named and appointed in any deed that shall be executed (according to law or agreement [74] between themselves in such deed) by my said parents, and for the same uses, ends, and purposes, with the same powers, and under the same provisions and declarations; which deed of theirs, when so executed, I do hereby declare shall form a part hereof, and that this my deed shall be as effectual for conveying my whole means and estate, and regulating the succession to the same, in the same way and manner as shall be appointed by the said deed of my parents as if their said deed were already executed and herein copied verbatim, any law or practice to the contrary notwithstanding." The deed then proceeds to convey his whole estate, heritable and moveable, real and personal, wherever situated, and of whatever description, which then belonged, or which might belong to him at the time of his death; and he farther appointed them (his parents) and the foresaid persons to be named by himself, and failing such nomination, the persons to be named by his parents in their deed, his sole executors and intromitters; and containing other usual clauses, with a reservation of full power, at any time of his life, to revoke, alter, or innovate, in whole or in part, as he might think fit, and in so far as not altered or revoked should be valid and effectual, and dispensing with the delivery. . On the 13th September 1815 Mr. Clyne's father and mother executed a mutual trust disposition and settlement, by which, on the narrative of the love and affection which they had to each other, and to David Clyne, S.S.C., their only surviving child, and for other causes and considerations, they with consent severally give, grant, assign, dispone, convey, and make over to and in favour of each other during their lifetime, and to the [75] longest liver, and after the death of the longest liver to and in favour of the said David Clyne, and the heirs of his body, and his assignees, whom failing, in favour of certain other persons as trustees, for the uses, ends, and purposes therein mentioned, their whole estate, heritable and moveable, and all their other property and effects, and, inter alia, for the purpose of converting their effects into cash, and after deducting debts and expenses, with instructions to divide the produce into ten parts, whereof one tenth part was declared to be payable to the children of the deceased Alexander Clyne, late tenant in Sordale, of which family the respondent is the eldest son. The deed contained the following reservations:-"Reserving to us and the survivor of us, at any time of our life, to appoint, as we may see fit and necessary, other persons as trustees for the purposes aforesaid, either in addition to or in room and place of the trustees before named, which trustees so to be named shail have the same powers as the trustees hereinbefore named, etc.; and farther reserving full power and liberty to them and to the survivor, but only with the express advice and consent of the said David Clyne, and not otherwise, at any time of our lives, and even on death-bed, to alter, innovate, or revoke the same in whole or in part, and declaring 27 MACLEAN & ROBINSON, 76 CLYNE's TRUSTEES V. CLYNE [1839] that any alterations we may make, if done by a regular writing subjoined hereto, or by a paper apart, shall be as valid and effectual as if they were engrossed in this deed, under which declarations these presents are granted, and not otherwise." Then follows the usual clause declaring the deed valid, in so far as not altered, and dispensing with delivery. [76] To this deed a codicil was subjoined, bearing to be subscribed by Mr. dyne's parents and himself, who also wrote it, dated the 30th October 1826, whereby the said " William Clyne and Margaret Swanson, with mutual advice and consent, and with the express advice and consent of our son David Clyne," nominated and appointed three trustees in room of two who had died, and oe whose appointment was thereby recalled; and they also, with advice and consent before mentioned, revoked and altered the bequest of one tenth share of their estate, arid appointed it to be distributed in proportion to the remaining shares. On the 1st November 1833, Mr. Clyne executed a trust deed of settlement, which proceeded on the following narrative; viz.-" Considering that circumstances have occurred to render necessary various alterations in the settlement of my means and estate since the deed of 22d August 1815 years was executed by me, and also since the death of my mother on the 15th day of January 1828, and the death of my father on the 30th day of December 1829 years; I do therefore hereby, and for other good causes and considerations me hereunto moving, give, grant, assign, dispone, convey, and make over to and in favour of the appellants, and to the survivor or survivors of such of them as should accept, the major part alive and accepting being a quorum, and to such other person or persons as they or I myself may afterwards appoint as trustees," his whole means and estate, and particularly a house in Albany Street, therein specially described, for the uses, ends, and purposes therein mentioned, and, inter alia, for payment of an annuity of 10 sterling to the appellant. [77] The deed concluded with the following clause:-" And I do hereby revoke and recall the foresaid settlement executed by myself on 22d August 1815, and another settlement executed by me in voluntary concurrence with my parents upon the 30th day of October 1826 years, and all other deeds and settlements, if any, in so far only as they interfere with the present deed," reserving power of alteration, but declaring always that the same, in so far as not...
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