The Rt Hon Gerald Arthur James, Earl Of Balfour, Viscount Traprain Of Whittingehame For Declarator Of Fee Simple Proprietorship V.
| Jurisdiction | Scotland |
| Judge | Lord Cameron of Lochbroom,Lord Sutherland,Lord Macfadyen |
| Date | 11 April 2002 |
| Docket Number | P550/01 |
| Court | Court of Session |
| Published date | 11 April 2002 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Cameron of Lochbroom Lord Macfadyen Lord Sutherland
| P550/01 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in PETITION of THE RIGHT HONOURABLE GERALD ARTHUR JAMES, EARL OF BALFOUR, VISCOUNT TRAPRAIN OF WHITTINGEHAME Petitioner for Declarator of Fee Simple Proprietorship _______ |
Act: McNeill, Q.C.; Turcan Connell, W.S.
Alt: Agnew of Lochnaw, Q.C. (for 2nd to 5th Respondents) (Trustees); Anderson Strathern, W.S.
Alt: Moynihan, Q.C. (for 6th Respondent) (Roderick Balfour); Brodies, W.S.
11 April 2002
[1]This petition is brought under and in terms of section 48, alternatively section 47, of the Entail Amendment (Scotland) Act 1848, the Rutherfurd Act, at the instance of the fourth Earl of Balfour ("Lord Balfour"). The petitioner invites the court, in brief, to declare that he is entitled to be the fee simple proprietor of the lands and the barony of Whittingehame and others, being the whole subjects described in the notice of title in favour of the trustees acting under the trust disposition and settlement and two relative codicils of the Right Honourable Arthur James, the first Earl of Balfour, ("the truster") registered in the Books of Council and Session on 24 March 1930 and recorded in the Register of Sasines for the County of East Lothian on 29 October 1931 under exception of all subjects subsequently disponed by the trustees.
[2]Answers to the petition have been lodged by the present trustees acting under the trust disposition and settlement and also by Roderick Francis Arthur Balfour ("Mr. Balfour"). In addition the court has been assisted by the report of Mr. Howie, Q.C., prepared in obedience to this court's interlocutor of 28 September 2001.
[3]The truster died on 19 March 1930 leaving a trust disposition and settlement dated 1 January 1923 and relative codicils dated 20 December 1927 and 20 September 1929.
[4]By the seventh purpose of his trust disposition and settlement the truster made provision for the rest and residue of his estate including the estate of Whittingehame and others to be held by his trustees and directed them to pay or apply the whole net revenue or income thereof "for behoof of the following series of heirs in their order successively each for his or her liferent use allenarly, videlicet:- My brother, the said Gerald William Balfour in liferent, whom failing the heir male of the body of the said Gerald William Balfour in liferent, whom failing, the heir male of the body of my brother Eustace James Anthony Balfour (now deceased), in liferent, whom failing the heir female of the bodies of each of my said brothers Gerald and Eustace in the order of their seniority, in liferent, excluding heirs portioners...". The truster then made further provision for the destination in liferent which it is unnecessary, for present purposes, to rehearse.
[5]By his codicil dated 20 December 1927 the truster varied the seventh purpose in the following manner:
"I hereby cancel the nomination of my said brother Gerald as the first liferenter or heir ceded to the succession of the rest and residue of my whole means and estate as provided for "In the Seventh Place" in said Trust Disposition and Settlement, and I now instruct that in his place the heir male of his body shall be the person first entitled to succeed thereunder, and I wish to say that I have made this alteration to save my heirs as much estate duty as possible: and in all other respects I confirm the foregoing Trust Disposition and Settlement."
The codicil dated 20 September 1929 was concerned only with the appointment of a named individual to be one of the truster's literary executors. Parties before us were agreed that the appointment was to be regarded as an administrative direction which did not affect the prior deeds as the expression of the truster's testamentary intention with regard to the settlement of his estate mortis causa. We agree that this is correct having particular regard to what was said in Miller's Trs. v. Miller 1958 SC 125. Nothing in the codicil dated 20 September 1929 innovated upon the testamentary provisions in the two prior deeds in any way.
[6]In terms of the directions set out in the two prior deeds, the trust disposition and settlement and the codicil dated 20 December 1927, the truster's residuary estate has since his death on 19 March 1930 been held for the following persons, firstly, for the third Earl of Balfour, the nephew of the truster and son of the second Earl ("Gerald"), who died on 27 December 1968 and, secondly, for Lord Balfour, son of the third Earl. It is to be noted that Gerald survived the truster and succeeded as the second Earl. While there was initially some doubt about the matter, it was common ground before us that Lord Balfour is in possession of the liferented estate as heir male of the body of Gerald and not, as appeared to be suggested at one time, as heir...
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