James Farquhar Gordon and Others, - Appellants; David Clyne, - Respondent
| Jurisdiction | Scotland |
| Judgment Date | 18 March 1839 |
| Date | 18 March 1839 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 801
FROM THE COURT OF SESSION.
Mews' Dig. i. 350, 365, 431; xi. 115; S.C. Macl. and R. 72. 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.
APPEALS from the court op session. JAMES FARQUHAR GORDON and Others,-Appellants; DAVID CLYNE,- Respondent [Feb. 26, 28; March 4, 18, 1839]. [Mews' Dig. i. 350, 365, 431; xi. 115; S.C. Mad. and R. 72. As to pauper appeals to the House of Lords, see Annual Practice, 1901, vol. ii. 660. As to non-appearance of parties, see S'herburne v. Middleton, 1842, 9 Cl. and F. 72 ; and as to costs, St. O. H.L. 10, and Manchester, etc., By. Co. v. Doncaster (1897), 1 Q.B. 117.] A. executed a disposition, by which, in the event of his predeceasing hisi parents without leaving heirs of his body, he gave all his estate, heritable and moveable, then belonging or which should belong to him at his. death, to his parents and the longest liver of them, and after the death of the longest liver, then to such person and for such uses as he himself might appoint by deed during his life, and even on death-bed ; a,nd in case he should die without eseouting such deed, then to such person and for such uses as his parents should by deed appoint. His parents predeceased A., having with his consent executed a mutual trust disposition and settlement in favour of trustees therein named. A. afterwards executed a trust disposition and settlement, giving all his estate to trustees therein named, declaring the uses, and revoking all former settlements as far as they interfered with it; and he died on the same day without heirs of his body. Held that A.'s said first deed did not preclude his heir at law from challenging and reducing the death-bed deed. [540] Notice of an, appeal does not stay interim execution of the decree; that, is entirely in the discretion of the Court. It is not a valid objection to a warrant for interim,: execution for costs, that the party obtaining it sued in forma, pou/pey-is, or that he did not lay before the Court, with his petition for the warrant, a printed copy of the appeal to the House of Lords, the Act 48 G. 3, c. 151, requiring a, copy merely to' be produced. Where a Respondent hasi not appeared to' a,n appeal until it is appointed for hear ing, he may still, by leave of the House, lodge his, printed cases, and at the same H.L. vii. 801 26 VI CLARK & FINNELLY. GORDON V. CLYNE [1839] time be heard at the bar in support of the decree; but although he has a clear case on the merits, and the appeal is dismissed, he will not be allowed his costs. There were three appeals in this case, all arising out of an action brought by the Respondent to reduce a death-bed deed executed by David Clyne, S.S.C., deceased, to whom the Respondent was cousin-german and heir-at-law. The said David Clyne executed a disposition, on the 22d of August 1815, in these terms:-" I, David Clyne, solicitor in the Supreme Courts of Scotland, in the event of my predeceasing my parents, without leaving lawful heirs of my body, do1 hereby, give, grant, etc., to and in favour of William Clyne, merchant in Thurso, my father, and Margaret Swanson, his spouse, my mother, during their mutual lives, and to 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 may name and appoint by any deed I may execute, at any time of my life, and even on dearth-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 between themselves in such deed) [541] by my said parents; and for the same uses, ends, and purposes, with the same powers, and under the same provisions and declarations that may be specified and contained in any such deed that may be so executed by them; 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 or1 practice to the contrary notwithstanding,-All and whole the estate, heritable and moveable, real and personal, wherever situated, and of whatever description or denomination the same may be, presently belonging or which shall belong to me at the time of my death," etc. " And I do hereby nominate and appoint the said W. Clyne and M. Swanson, and the longest liver of them, and after their death the foresaid persons to be named by myself; and failing such nominar tion, the persons to be named and appointed by the said W. Clyne and M. Swanson, as aforesaid, to1 be my sole executors and intromitters with my whole moveable and personal estate," etc. " Reserving full power and liberty to me, at any time of my life, and even on death-bed, to revoke, alter, or innovate these presents, in whole Gain part." etc. On the 13th of September 1815, Mr. Clyne's parents, with his concurrence, executed a mutual trust disposition and settlement, as follows:-" Know all mem by these presents, that we, William Clyne, merchant in Thurso, and Margaret Swanson, his spouse, for the love and affection which we have and bear to each other, and to David dyne, solicitor, etc., our only surviving child, and for other causes and consi-[542]-derations hereunto moving us, do hereby, with consent, severally give, grant, etc. to' and in favour of each other, during all the days of the lifetime of the 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, to and in favour of G. M. (and several others by name), or to such other person or persons as may be named in manner after mentioned, and to the survivors or survivor, as trustees, for the uses, ends, and purposes after mentioned, All and sundry our heritable and moveable estate, of whatever nature and denomination the same may be, heirship as well as others included, which shall belong to us, or either of us, at the time of our death," etc.; with instructions, after converting the effects into cash, and deducting debts and expenses, to divide the produce into ten parts, one part of which to- be paid to the children of Alexander Clyne, the father of the Respondent. Then followed these 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, etc.; and farther, reserving full power and liberty to us, and to the survivor of us, 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 or revoke these presents." To this deed was subjoined a codicil (dated the 30th of October 1826, and written 802 GORDON V. CLYNE [1839] VI CLiBK & FINNELLY. by the saidDavidClyne, the son), whereby the granters nominated and appointed three trustees in room of two who* had died, and one whose appointment was recalled; and they also revoked and altered one share of their estate, and [543] appointed ''t to be distributed in proportion to the former shares; and this codicil bears to have een executed with their mutual advice and consent, and with the express advice and conr sent of the said David Clyne; and bears to be subscribed by them and by the said David Clyne in token of his consent thereto. Mr. dyne's parents predeceased him, his mother dying in 1828, and his1 father in 1829. He himself died on the 1st of November 1833, having in the course of that day executed the following trust disposition and settlement:-" I, David Clyne, solicitor in the Supreme Courts of Scotland, considering the shortness and uncertainty of life, and that circumstances have occurred to render necessary various alterations in the settlement of my means and estate since the deed of 22d day of August 1815, etc., and also since the death of my mother on the 15th of January 1828, and the death of my father on the 30th of December 1829, do therefore hereby, and for other good causes and considerations me hereunto' moving, give, grant, etc. to and in favour of (the Appellants), and to the survivors or survivor, etc., and to such other person or persons as they or I myself may afterwards appoint as trustees, for the uses, ends, and purposes aftermentioned-All and whole the estate, heritable and moveable, real and personal, wheresoever situated, and under whatever description, which may belong to me at the time of my death, etc.; declaring that the present disposition is granted under the burden of payment of all my just debts, etc., and also for the other special objects and purposes following." (Among the objects and purposes there declared, were legacies of 3000 sterling to Sir W. Baillie, one of the trustees and Appellants; 1000 to his sister ; 3000 to David Hanson, another of the trustees and Appel-[544]-lants; and several smaller legacies, among which was 10 a year to the Respondent for his life.) " And I do hereby revoke and recal the foresaid settlement formerly 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 this present deed; but reserving always full power and liberty to1 me, at...
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