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"A direction in a will to apply a sufficient part of the income of the testator's estate in keeping on foot policies effected by him on the lives of his children, and to be settled in case of their marriage on their wives and children, is not a trust for accumulation within the statute, and is accordingly effectual for a period of more than twenty-one years from the testator's death. Bassil v. Lister, 9 Hare, 177. The effecting of policies of insurance on lives is not a mode of accumulation at all. Cathcart's Trustees v. Heneage's Trustees, 13 July, 1883, 10 R. 1205.

But after the lapse of twenty-one years from the testator's death trustees are not entitled to apply surplus revenue in paying off debts incurred by themselves in the purchase of lands during that period. Such payments are accumulations. Smyth's Trustees v. Kinloch, 20 July, 1880, 7 R. 1176.

7 It is immaterial that the settlor has not directed accumulation, if the effect of the deed is to cause accumulation beyond the limits allowed by the statute. Lord v. Colvin, 7 Dec. 1860, 23 D. 111; and the English cases of Evans v. Hellier, 12 Cl. and F. 114; Tench v. Cheese, 6 De. G. M. and G. 453; Countess of Bective v. Hodgson, 10 H. L. Ca. 656, 671; Mathews v. Keble, L. R. 3 Ch. App. 691; Wade-Gery v. Handley, L. R. 1 Ch. D. 653, 3 Ch. D. 374; Campbell's Trustees v. Crichton, 1890, per Lord Kincairney, but now under review in Inner House.

8 A trust for accumulation, reaching beyond the allowed period, is good pro tanto. Luydon v. Simson, 12 Ves. 295.

9 I.e., from the commencement of the twenty-second year. Per M'Neill, L. P., in Keith v. Keith's Trustees, 17 July, 1857, 19 D. at p. 1057.

10 The effect is to give the accumulations to the persons who would have succeeded ab intestato; that is to the persons entitled to take by reason of the deceased not having disposed of that estate. This implies a reference to the date at which he died intestate. Lord v. Colvin, 7 Dec. 1860, 23 D. 111; Smyth's Trustees v. Kinloch, 20 July, 1880, 7 R. 1176.

As to the destination of income released from accumulation, see M'Laren, Wills and Succession, i. p. 307; Bythewood and Jarman, Precedents, vii. p. 452; Ogilvie v. Kirk Session of Dundee, 18 (decided 12) July, 1846, 8 D. 1229; Lord v. Colvin, supra; Mackenzie v. Mackenzie's Trustees, 29 June, 1877, 4 R. 962; Maxwell's Trustees v. Maxwell, 24 Nov. 1877, 5 R. 248; Smyth's Trustees v. Kinloch, supra.

any

herein to

provision for payment of debts or for raising por

2. Provided always, and be it enacted, that nothing in this Act Nothing contained shall extend to any provision for payment of debts of any extend to any grantor, settlor, or devisor, or other person or persons, or to any provision for raising portions 2 for any child or children of grantor, settlor, or devisor, or any child or children of any person tions for taking any interest under any such conveyance, settlement or devise, touching the or to any direction touching the produce of timber or wood upon any lands or tenements, but that all such provisions and directions shall and may be made and given as if this Act had not passed.

3. Provided also, and be it enacted, that nothing in the Act contained shall extend to any disposition respecting heritable property within that part of Great Britain called Scotland.3

children or

timber; nor to any disposition of heritable property in Scotland.

produce of

4. Provided also, and be it enacted, that the restrictions in this Act When restriccontained shall take effect and be in force with respect to wills and take effect

tions shall

to wills made

with respect testaments made and executed before the passing of this Act in such cases only where the devisor or testator shall be living, and of sound and disposing mind after the expiration of twelve calendar months from the passing of this Act.4

before the passing of this Act.

They must be debts in existence at the death of the settlor and subsisting at the date when the trust comes into operation, not debts incurred by the trustees under the settlement. Smyth's Trustees v. Kinloch, 20 July, 1880, 7 R. 1176. To come within the exception it must be the primary and bona fide object of the testator's direction to make provision for payment of the debts. Mathews v. Keble, L. R. 3 Ch. App. 691. Accumulation will not be allowed if in point of fact the debts are paid off from other sources. Tewart v. Lawson, L. R. 18 Eq. 490.

2 As to this part of the Act, see Peachey, The Law of Settlements, p. 440 et seqq; Bythewood and Jarman, Precedents, vii. p. 456; Barrington v. Liddell, 2 De. G. M. and G. 480.

3 Repealed 11 and 12 Vict. c. 36, s. 41, infra, p. 205, which enacts that 39 and 40 Geo. III. c. 98, shall in future apply to heritable property in Scotland.

The Act applied to moveable property in Scotland from the date of its passing. Supra, § 153. Ogilvie's Trustees v. Kirk Session of Dundee, 18 July, 1846, 8 D. 1230. Keith's Trustees v. Keith, 17 July, 1857, 19 D. 1040; M'Laren, Wills and Succession, i. p. 300.

"The reason for the exception of heritable property was to avoid trenching on the prejudices of the Scotch people, and out of a regard to the law of perpetuities in that country." Per Kindersley, V.C., in Macpherson v. Stewart, 1858, 7 W. R. 34.

4 Commented on by Lord Ivory and Lord Deas in Keith's Trustees v. Keith, supra, 19 D. at pp. 1062, 1069.

No. XIII.

11 AND 12 VICTORIA, C. 36.

An Act for the Amendment of the Law of Entail in Scotland.1

[14th August, 1848.]

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1 Commonly called the Rutherfurd Act. Supra, §§ 145, 148. In the year 1764, upon the suggestion of Lord Mansfield, proposals were made by the Faculty of Advocates for the abolition of the law of Entail. At a meeting of the Faculty upon 4th August, 1764, the proposals were approved of by 43 to 4. In 1765 was published, Heads for a Bill to amend the law concerning Taillies in that part of Great Britain called Scotland. By the Faculty of Advocates. Edinburgh, 1765,” 8vo. The scheme was to allow existing entails to stand as they were during the lives of the heirs in possession and of the substitutes then alive, and that thereafter the prohibitions of the entail should become inoperative except to the extent to be allowed by the proposed Act. It was proposed that in future it should not be lawful to restrain any heirs of taillie not in life at the time from alienating such lands for valuable consideration, or from granting heritable securities thereon; but that it should be lawful for proprietors to make entails binding upon persons in life at the time of making the settle

ment.

The proposals were supported by Lord Swinton, then at the Bar (A free Disquisition concerning the law of Entails in Scotland, Edinburgh, 1765, 8vo.); and were opposed by Sir John Dalrymple of Cranstoun (Considerations upon the Policy of Entails in Great Britain, Edinburgh, 1764, 8vo.), and by Patrick, fifth Lord Elibank (Queries relating to the proposed Plan for altering Entails in Scotland in a Letter to Edinburgh, 1765, 8ro). The latter was, however, willing to have it enacted that no entail should be binding beyond the extent of £15,000 Scots per annum valued rent, and that the excess should be dealt with as not entailed; and that no estate under £500 valued rent should be capable of being entailed. In 1765 there was published Proposals for amending the law concerning Tailzies in Scotland, Edinburgh, 1765, 8vo. This is a draft Bill upon the lines suggested by Lord Elibank. These proposals were criticized in A letter from a Gentleman in Edinburgh to his friend in the country containing an answer to the Proposals for amending the law concerning Tailzies in Scotland, Edinburgh, 1765, Sro. This letter approved generally of the Proposals, but the writer did not think that they went far enough.

The sweeping changes suggested by the Faculty of Advocates were far in advance of the time, and came to nothing, but in 1770 James Montgomery as Lord Advocate brought in a Bill which became law as 10 Geo. III. c. 51. This Act gave effect to many of the minor changes which had been advocated; it authorized agricultural and building leases and excambions, and provided for compensation for improvements; but did nothing towards putting an end to entails or to perpetuities of any kind.

So inflexible was the law established by the Act of 1685 that, as stated by Lord Advocate Rutherfurd in introducing the Bill, which afterwards became the Act of 1848, it was competent for the settlor "to render it impossible, on the part of any future holder, to alter so much as the arms upon his carriage, or the button upon his servant's livery, even though it should be for a period of five hundred years."

Scotland.

41. And whereas an Act was passed in the thirty-ninth and fortieth 39 & 40 Geo. III. applied years of the reign of His Majesty, King George the Third, intituled to heritable "An Act to restrain all Trusts and Directions in Deeds or Wills, property in whereby the Profits or Produce of Real or Personal Estate shall be accumulated, and the beneficial enjoyment thereof postponed beyond the Time therein limited," by which Act it is provided and enacted, "that nothing in this Act contained shall extend to any disposition respecting heritable property within that part of Great Britain called Scotland ;" and it is expedient that the provisions of the said Act should be extended to heritable property in Scotland; be it enacted, that the said provision and enactment of the said recited Act shall be, and the same is hereby repealed, and the said Act shall in future apply to heritable property in Scotland.2

1 Supra, p. 201.

2 Supra, § 153. Directions in deeds, which became operative prior to 14th August, 1848, for accumulating the rents, profits, and issues of heritable property in Scotland, are not affected by anything contained in the Thellusson Act or in the Rutherfurd Act, but remain in the same full force which they possessed when such deeds first came into operation. See Interlocutor in Keith's Trustees v. Keith, 17 July, 1857, 19 D. at p. 1071; Per

Act not to be defeated by

trusts.

Or by life. rents.

Lord Westbury, L.C., in Pursell v. Elder, 1865, 4 M‘Q. 992, s. c. 2 Paterson,
App. Ca. 1303; M'Larty's Trustees v. M'Laverty, 23 Jan. 1864, 2 M. 489;
Cathcart's Trustees v. Heneage's Trustees, 13 July, 1883, 10 R. 1205.

47. And be it enacted that where any land or estate in Scotland shall, by virtue of any trust disposition or settlement or other deed of trust whatsoever, dated on or after the first day of August, one thousand eight hundred and forty-eight, be in the lawful possession, either directly or through any trustees for his behoof, of a party of full age, born after the date of such trust disposition settlement or other deed of trust, such party shall not be in any way affected by any prohibitions, conditions, restrictions, or limitations, which may be contained in such trust disposition or settlement or other deed of trust, or by which the same or the interest of such party therein may bear to be qualified, such prohibitions, conditions, restrictions, or limitations, being of the nature of prohibitions, conditions, restrictions, or limitations of entail, or intended to regulate the succession of such party, or to limit, restrict, or abridge his possession or enjoyment of such land or estate in favour of any future heir, and such party shall be deemed and taken to be the fee-simple proprietor of such land or estate, and it shall be lawful to such party to make application by way of summary petition to the Court of Session, setting forth the facts, and referring to this Act, and craving the Court to pronounce an act and decree declaring him fee-simple proprietor of such land or estate, and unaffected by any such conditions, provisions, restrictions, or limitations; and the Court shall proceed in such petition as may be just, and shall have power to pronounce an act and decree declaring such party to be fee-simple proprietor of such land or estate, and unaffected as aforesaid; and such act and decree may be recorded in the register of sasines, and being so recorded, shall have all the operation and effect of the most formal and valid disposition to such party, and his heirs and assignees whomsoever, of such lands or estate, with infeftment thereon in favour of such party duly recorded Provided always that the rights of the superior of such lands or estate, and of all parties holding securities thereon, and all rights which are held independently of such trust disposition or settlement, or other deed of trust, shall be as they are hereby reserved entire.

1 These words cover mortis causa as well as inter vivos deeds.

2 I.e., bearing date, supra, § 148.

3 Cf. sec. 1 of the Act, as to a consenter born "after the date of the tailzie."

48. And be it enacted, that from and after the passing of this Act it shall be competent to grant an estate in Scotland limited to a liferent interest in favour only of a party in life at the date of such grant;

and where any land or estate in Scotland shall, by virtue of any deed dated on or after the said first day of August one thousand eight hundred and forty-eight, be held in liferent by a party of full age, born after the date of such deed, such party shall not be in any way affected by any prohibitions, conditions, restrictions, or limitations which may be contained in such deed, or by which the same or the interest of such party therein may bear to be qualified, and such party shall be deemed and taken to be the fee-simple proprietor of such estate, and it shall be lawful to such party to obtain and record an act and decree of the Court of Session in the like form and manner and in the like terms and with the like operation and effect as is hereinbefore provided with reference to an act and decree of the said Court in the case of deeds of trust: Provided always that the rights of the superior of such lands or estate and of all parties holding securities thereon, and all rights which shall be held independently of the deed by which such liferent is constituted, shall be as they are hereby reserved entire.

49. And be it enacted, that where any land or estate in Scotland Or by leases. shall, by virtue of any tack, assignation of tack, or other deed or writing, dated on or after the said first day of August, one thousand eight hundred and forty-eight, be held in lease, either directly or through trustees for his behoof, by a party of full age born after the date of such tack, assignation of tack, or other deed or writing, such party shall not be in any way affected by any prohibitions, conditions, restrictions, or limitations, which may be contained in such tack, assignation of tack, or other deed or writing, or by which the same or the interest of such party therein may be qualified, such prohibitions, conditions, restrictions, or limitations, being of the nature of prohibitions, conditions, restrictions, or limitations of entail, or intended to regulate the succession of such party, or to limit, restrict, or abridge his possession or enjoyment of such land or estate in favour of any future heir: Provided always that it shall be lawful to the proprietor of whom such lease is held to enforce any prohibitions, conditions, restrictions, or limitations contained in such tack, assignation of tack, or other deed or writing which shall have been inserted therein for the bona fide purpose of protecting the just rights and interests of such proprietor, in so far as such enforcement may be necessary in order to such protection.

52. And be it enacted, that in construing this Act, except where the Interpretation nature of the provision shall be repugnant to such construction,

. . the words "land" and "lands" shall extend to and comprehend

all heritages.

of Act.

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