with the party against whom it lies.-II. Creditors acting as by law directed, are entitled to sell by public auction any claims or debts due to the estate.III. But it is not legal for them to sell privately, or at a meeting of creditors, and without the formalities and securities of public sale, such claims or debts, more especially to one of their own number seeking to make gain of it, and where so to do would or might retard the winding up the sequestration, involve the estate in litigation, and subject it to the danger of loss. IV. Where an offer to buy is not accepted, there is no sale, and no right vests on the offerer, but the right remains vested as before.-V. Where an offer of compromise is made upon certain conditions, and the party to whom the offer is made declines to accept of it upon these conditions, the offer flies off, and matters return to the same state in which they were before the offer was made.

"The Lord Ordinary (13th November 1832,) having considered the closed record, and heard parties' procurators thereon, and having thereafter made avizandum with the process, Finds, That the majority of the creditors did wrong, in resolving to enter into the proposed compromise of the claim competent to the trust-estate, against Mr Adam Luke, in opposition to the offer and protest of the complainer, John Spence; therefore, sustains the complaint to this extent, and recals the resolution complained of: Finds, That, under such circumstances, it was competent to Mr Spence to have demanded that the creditors, if they resolved neither to proceed in the action against Mr Luke for the general behoof, nor to expose the claim to public sale, to instruct the trustee to grant an assignation to the said John Spence, of his right and title to maintain the claim against Mr Luke, on Mr Spence making payment of the sum of £100, and finding security to relieve and indemnify the trustee and the trust-estate of all expense and damage which might be incurred thereby; and under this farther condition, that, in the event of a greater sum being recovered in any action to be raised, than what might be sufficient, after defraying all charges, to pay to Mr Spence and the other complainer, twenty shillings in the pound of their debts claimed on, he should be bound to account for and pay over any such surplus to the trustee, for behoof of the other creditors. But, in respect that the complainer's offer and demand were not so qualified, but imported a demand of an absolute assignation of the claim of debt to him as a purchaser, Finds, That it is still open to the trustee and the creditors to expose the said claim of debt to sale by public auction, or, in their option, to assign the claim to the complainer in the terms above expressed, in case he shall declare his willingness to accept of such an assignation: Remits to the trustee, with instructions forthwith to call a meeting of the creditors, to declare their option accordingly; and, in the event of such option not being declared within one month after this interlocutor shall have become final, ordains the trustee to grant an assignation to the complainer, to the effect, and on the conditions above expressed, and decerns: Finds the complainer entitled to the expense of presenting the complaint, but finds no other expenses due to either party.-Note.-This complaint may not be of a very favourable nature, considering the circumstances under which it was presented, and the broad conclusion which it contains. But the Lord Ordinary is of opinion, that it is the right of any creditor upon a bankrupt estate, when it is proposed to compromise a claim competent to the estate against a third party, on terms which he thinks unfair or inadequate, to insist that the claim shall either be prosecuted by the trustee, or exposed to public sale, or shall be assigned to bimself, on his making payment of the sum offered, under the proposal of compromise, and binding himself with security to keep the estate indemnis. He thinks that this necessarily follows from the prin ciple of the decided cases, regarding the abandonment of such claims, but no creditor can be allowed to speculate in the purchase of claims of debt so situated, to the effect of making profit of them beyond the amount of his own debt. The complainer's

offer and demand, therefore, ought to have been so qualified, as to bind him to account for any surplus. The law itself, however, would have produced this effect without any express stipulation; and as the creditors entirely rejected that offer and demand on other grounds, without requiring either such an obligation or security for the indemnity of the estate, and as the complainer did offer security in the petition, the Lord Ordinary is of opinion that, in substance, the complainer had sufficient grounds in law to support his complaint. But, on the other hand, the conclusion of the complaint, to have it found that the debt was actually vested in Mr Spence, was a great deal too broad, and the Lord Ordinary thinks, that the intimation made by the letter of the trustee on the 12th January 1831, before lodging the answers, ought to have been met in a different manner. The trustee and commissioners might not have power to adopt a new course, contrary to the resolution of the meeting of creditors. But after the compromise was broken off, and notice was given that the trustee and commissioners were willing that the claim should be exposed to public sale, the matter might easily have been terminated, if the complainers had proposed to take decree to the same effect with the interlocutor now pronounced. The Lord Ordinary cannot, therefore, award to the complainer the expenses which followed; and as the respondents have entirely resisted the complaint on all its merits, and insisted that it should be dismissed with costs, neither can he find them entitled to expenses."

Spence reclaimed as to expenses,-Gibson, &c. reclaimed against the finding that the creditors did wrong in entering into the compromise in the face of the offer by Spence, and against the finding by which the petitioner got the expense of the complaint, although, as Luke had broken up the proposed compromise, their note also ultimately regarded a mere question of expenses. At advising,

The Lord Justice-Clerk had no doubt as to the expenses of the complaint. The party was entitled to go on with his complaint, but the Court were bound to save the public the expense of unnecessary proceedings. Therefore, as the interlocutor bore that a record was gone into on the motion of the respondents, they ought to bear the expeuse of it, though not of the rest of the litigation. He could not adhere as to this expense.

Lord Glenlee observed, that there were various facts regarding which the parties were not at one. And it would form a dangerous precedent to say, that where a party insists that specific statements shall be put on record, to see where parties agreed, and where they differed, that party was to be liable in the expenses. It would be better to inquire which party was in the wrong. Now, here, both parties were excessively to blame. Things having been altered by the blowing up of the compromise, there was an end of Spence's offer, even if it had been a right The Lord Ordinary did well in giving no expenses. The record would have been necessary, if the litigation had been to go on as to the right claimed by Spence.

one.

Lord Meadowbank thought, that as the respondents had the last word in their answers, they, in demanding a record, were bound to pay the expense of it. Improper litigation should be checked. And it was a misfortune that the Lord Ordinary was not invested with power to make a party applying for a record liable in the expense, where he saw fit. This was his opinion, independently altogether of the question, whether the parties were originally right or wrong, although as to that, he concurred with Lord Glenlee and the Lord Ordinary.

Lord Cringletie, since he had heard the counsel, agreed with the chair and Lord Meadowbank. The record was not at all necessary to the disposal of the question really raised, which was a simple question of law, arising out of the facts stated in the petition. There were two opposite pleas. The Lord Ordinary had found the creditors wrong in insisting in the com promise, and Spence wrong in conceiving that his offer bad vested the debt in him. The respondents must pay the expense of a record made up at their desire, when there were materials for decision without it.

paring and making up the record, in addition to that of presenting the complaint, in so far altering the interlocutor of the Lord Ordinary;-adhere quoad ultra, and refuse the desire of the notes: Further, find the complainer entitled to the expense of the advising in the Inner-House, and allow the account," &c.

Authorities for Petitioner.-Sprott, 5th July 1828; Shaw and Dunlop, Vol. VI. p. 1083. Houston's Executors v. Porterfield and Buchanan, 13th December 1826; Shaw and Dunlop, Vol. V., p. 115.

Second Division.-Lord Ordinary, Moncreiff.-Act. Dean of Faculty (Hope), Monteath.-Alt. D. M'Neill.-Mackenzie and Macfarlane, W. S., and James Bridges, W. S., Agents.-Mr Thomson, Clerk.-[T. C.]

14th December 1832.

No. 109.—MEEK, Petitioner.
Process-Record-Appendix, Printing of.

This was a note against a judgment in the BillChamber, refusing a bill of suspension upon answers. In his interlocutor, the Lord Ordinary specially referred to, and founded upon certain documentary evidence produced by the charger. These documents were not printed in the appendix to the reclaiming

note.

Russell, for the respondent (charger), contended, that as the documents were specially mentioned in the judgment reclaimed against, the suspender ought to be ordained to print them still: That this was a different case from that contemplated by the Act of Sederunt, which entitled a respondent to crave leave to print additional documents, not expressly founded on in the judgment.-The Court, however, held the Act of Sederunt to apply here, and allowed the charger to print an additional appendix.

Maidment, for the reclaimer (suspender), craved leave to print additional documents, which his client had not an opportunity of producing in the Bill-Chamber, and which he said would establish the inaccuracy of certain averments made in the answers to the bill. -The Court refused to allow any thing to be printed which had not been before the Lord Ordinary,-observing, that he might read the letters at the advising as part of his speech, when the Court would appoint them to be printed, if they thought that necessary for the just decision of the cause.

First Division.-Mr Bell, Clerk.-J. W. D.]

15th December 1832.

No. 110.-MRS LITTLEJOHN, &c., Petitioners, v. JAMES HAMILTON, W.S., Respondent. Sequestration-Competency-A party having granted heritable bonds over his estate, and having thereafter executed a trust for behoof of his creditors, reserving to himself a certain annuity, and providing that the trust should not cease on the death or resignation of the trustee, and pointing out the manner in which a new one should be chosen; and the creditors having acceded— Held, that an heritable creditor was not thereby debarred from applying for sequestration of the rents, whilst no trustee, but only a factor, was superintending. Sequestration accordingly awarded, reserving the rights of all parties.

James Hamilton, Esq., W.S., purchased from the trustees of Sir William M'Leod Bannatyne, the estate of Kames; and having paid part of the price, he granted in 1810, two heritable bonds for £10,000 each, over the lands for the balance. In 1815, Mr Michael Linning, W.S., acquired right to £2500, part of said secured

price, and assigned £667, 10s. thereof to Peter Littlejohn, Esq., of Clifford Park. Infeftment duly followed. On Littlejohn's death, his sister, the petitioner, made up titles, by precept of clare constat, as heir-portioner, to £333, 15s., being one-half of the said £667, 10s., vested in her brother P. Littlejohn. The respondent's affairs having become embarrassed, he, in October 1816, executed, for behoof of his creditors, a trust-deed in favour of John Campbell, W.S., quartus, of his whole means and estate. This deed, inter alia, provided, that an annuity of £600 should be paid to Mr Hamilton during his life; and that though "the trustee shall resign or shall die, yet the trust shall noways cease or become void," &c., but should be permanent, for behoof of the creditors. It then stated the manner in which the new trustee should be chosen. A deed of accession was afterwards subscribed by the creditors, and among others, by Mr Linning, the petitioner's author. This deed binds the subscribers and their successors, &c., to conform to the terms of the trust, and not to raise, commence, " or follow forth any action, suit, diligence, or execution," against the person or estate of the said James Hamilton. Mr Campbell soon resigned the office of trustee, and Mr Wright was appointed by the creditors, and continued to act till 1824, when he died. In 1832, the petitioner applied to the Court to sequestrate the rents of Kames, and to name a fit person as factor thereon, on the grounds, that for nine years (since Mr Wright's death), no new trustee had been named by the creditors: That Mr M'Rae, who had acted as factor, had for a considerable time ceased to uplift the rents, which for several years had been in the hands of the tenants: That actions of maills and duties had been raised by the petitioner and other heritable creditors; and that a summons of multiplepoinding was about to be raised in name of the tenants. The respondent objected-I. That such a measure was incompetent, in respect that the Court, on 10th July 1830, refused a similar petition at the instance of Alexander Smith, as assignee to a debt over the estate of Kames, ceded to him by the same petitioner: That it was in the face of the trust-deed which the petitioner's author subscribed, which provided that it should not cease by the death or resignation of the trustee : That the creditors should have elected a new trustee in terms thereof.-II. That such a sequestration was unnecessary, as the creditors had met in 1824, and instructed Mr M Rae, banker in Rothsay, to act as factor, and who had ever since drawn the rents, with which the respondent had never intromitted: That of this arrangement the petitioner and her author had approved, and were not entitled to interrupt by the present procedure.

Lord Cringletie said, he thought the application competent. The object of the sequestration was to preserve the proceeds of the estate. It might be doubted if the trust was not now at an

end.

The Court sequestrated the rents of the estate of Kames, reserving the rights of all parties.

Respondent's Authority.-Smith v. Hamilton, 10th July 1830; S. & D.

Second Division.-Act. A. E. Monteith, Dean of Faculty (Hope), Maitland, Keay and Wood.-Alt. Skene and Tait.—

No. 111. SIR CHARLES HALKETT, Pursuer, v. EARL OF ELGIN, &c. Defenders. Process-Party-Lucratus-Relief-Held, that a party who avails himself of the consequential benefit of an operation performed by another, and has been found liable to that other party in a proportion of the expense, is not entitled to resist payment of that part of the expense, on the ground that others likewise de riving consequential benefit—but no parties to the action-ought to be made liable directly to the party conducting the operation, for their share of the expense, upon a hypothetical calculation of expense thereby saved to them.

The Earl of Elgin was under an obligation to clear the Pitfirrane level. But in order to its being available to him and others, it was necessary that the Urquhart level, which communicated with it, should be cleared. This was cleared by Sir Charles Halkett, who had a separate interest in it. But his operations saved the Earl and others the expense of clearing it. The Earl was found liable in a proportion of the expense. Of this he alleged that he could compel the other parties (who were not called) to bear a share, upon a calculation of the expense which they would probably have otherwise been put to. The following interlocutors were pronounced:

"8th February 1832.-The Lord Ordinary having heard parties' procurators, and thereafter considered Mr George Taylor's second report, and whole process, finds, in reference to the said second report, that the Earl of Elgin was under an obligation to clear the Pitfirrane level; and with this finding, approves of the said report; and appoints the cause to be enrolled with a view to further procedure."

"10th February 1832.-Allows parties' procurators to be farther heard at the end of the motion-roll of Tuesday next, in relation to the question, as to what proportion of the expense in clearing up the level is to be charged against Lord Elgin, referred to in page 15 of Mr George Taylor's second report, and also on the question of expenses.'

"14th February 1832.-Having heard parties' procurators in relation to the question referred to in interlocutor of 10th instant, appoints the defender Lord Elgin, to give in a minute, setting forth the grounds on which his Lordship could, in 1818, compel other, and what parties, to concur with him in clearing, and bearing the expense of clearing the Urquhart level, and that within six days; and the pursuer to answer the same within six days thereafter.'

"22d May 1832.-The Lord Ordinary having considered this minute, with the answers thereto, finds, that the defender does not appear to be liable for more than one-fourth share of the expense of clearing the Urquhart level; and that he does appear to have a right to call upon other proprietors to pay three-fourth parts of that expense, unless they are willing to renounce interest in that level, which it is not stated they are willing to do: Therefore finds, that the sum of £53, 2. 6, not £212, 10s., is the sum to be assumed as the expense to the defender of the repair of that level: Finds no expenses due to either party.— Note. The Lord Ordinary does not see how these other properties can possibly hold shares of interest in this level, without bearing a share of the expense of keeping it in repair; or how, if liable at all, they can be liable otherwise than in the way settled by formal agreements, which are not said to be recalled." The pursuer reclaimed, praying the Court

"to recal the interlocutor complained of, and to find that Lord Elgin bas not established, by any legal or competent evidence, that he could have compelled other parties, in 1818, to concur

with him in clearing, and bearing the expense of clearing the Urquhart level; and that therefore the sum of £212, 10s. is the sum to be assumed as the expense to his Lordship of the repair of that level; and to find the pursuer entitled to his expenses." At advising,

The Lord Justice Clerk thought, that if the plea of Lord Elgin went on the ground that the other parties were liable in relief, these parties must be brought into Court, before any decision could be given.

Lord Glenlee observed, that the Urquhart level was, in point of fact, not cleared; and the Court were asked to enter into a hypothetical calculation regarding it. But the true question was, what would a reasonable man have given in 1821, without any such bypothesis. It was rather an odd plea to say, I might have cleared the level; and if I had done so, you would have owed me so much.

Lord Cringletie could never take for granted that parties not in Court were liable. Lord Elgin must pay the money, and then get his relief.

Lord Glenlee might have regarded the matter in a different light, had Lord Elgin produced a written acknowledgment from these people, that if he had cleared the level, they would have been liable to him in so much.

The Court

"Adhere to the interlocutor of the 8th of February last, and of the 22d of May, upon a representation and answers, and in so far refuse the desire of the defenders' note; recal the interlocutor of the Lord Ordinary of 22d May, reclaimed against by the pursuer, and also by the defenders, in so far as regards expenses: Find, that the defenders are liable to the pursuer in the sum of £129, 7. 6. as the consideration to be paid by them to him, for the communication of the Pitfirrane level, for working the coal field in and Balbridge; and also Find the defenders liable to the pursuer in the sum of £212, 10s. as the half of the estimated expense of clearing the Urquhart level, which has been saved to the defenders by their not having occasion to clear any part of that level,-all in terms of Mr Taylor's reports, and decern accordingly; reserving to the defenders their claims of relief against the other proprietors, who are alleged by them to be jointly liable for the expense of clearing the Urquhart level, and recourse, if need be, against all others interested for any part of the hypothetical compensation of £212, 10s., above decerned for, and to such proprietors and others their respective defences as accords; and with these findings, remit to the Lord Ordinary to dispose of the cause, quoad ultra: Reserving to the pursuer bis claim for compensation for the communication of the Pitfirrane level to the coal in the farm of East and West Drumtothell, and others, enumerated in Mr Taylor's second report, consisting of 675 acres 18 falls, when the level shall be carried forward thereto, and to the defenders their defences as accords."

Second Division.-Lord Ordinary, Mackenzie.-Act. Lord Advocate (Jeffrey), Cuninghame.-Alt. Skene, R. Dundas.W. H. Sands, W.S., & Adam Rolland, Junior, W. S., Agents. -Mr Rolland, Clerk.-[T. C.]

15th December 1832.

No. 112.-KERR'S TRUSTEES, &c., Pursuers, v. MACDONALD OF LYNDALE'S TRUSTEE.

Title to Pursue-Trust-Deed-Parties having attended meetings of creditors under a trust-deed, to consider what conduct the trustee should pursue; and there being no deed of accessionHeld, that said parties were not barred from proceeding against the trust-estate in an action of maills and duties.

The late Colonel Macdonald of Lyndale, in November 1826, executed a trust-deed in favour of Claud Russell, accountant in Edinburgh, as trustee for behoof of his creditors. The deed contained the most ample powers of sale, &c. The defender was infeft,

-appointed a factor, who uplifted the rents, and, till December 1831, was undisturbed in the management: when the pursuers, Margaret and Amelia Wilhelmina Kerr, the sisters of the deceased Charles Kerr, and Sir Charles Kerrand William Elliot, his trustees, raised the present action of maills and duties against the tenants of Lyndale, and also against Claud Russell as trustee, concluding for payment of certain rents, in liquidation of sums due to them out of the trust estate. In defence, it was pleaded, That there had been a general aceession of the creditors, though it had not been deemed necessary that they should sign a separate deed of accession: That the defenders were postponed heritable creditors, and by their accession, proved by the minutes of the creditors produced, were barred from pursuing the present action to disturb the management of the trustee. On 3d July 1832, Lord Medwyn pronounced this interlocutor:

"Having resumed consideration of the debate in this case, and examined the productions made in support of the preliminary plea, that the pursuers are barred from insisting in this process, in respect of their own or their predecessor's accession to the trust-deed in favour of the trustee; and being of opinion that this plea is not well founded, Appoints the defender to come prepared to state whether he means to acquiesce in an interlocutor to that effect, when it shall be pronounced.-Note.In this case it is not alleged that there was any deed of accession to the trust-deed, nor, so far as appears, was there any di. rect accession. The trust-deed is dated 18th November 1826; and the first meeting of creditors, the minutes of which is produced and founded on, is of date 7th June 1830. This meeting had been called by the trustee to consult the creditors as to the claim for composition of entry by the superior; and various subsequent meetings are called and attended by agents for cre.. ditors, to give instructions as to lowering the upset price of the lands, and the disposal of the rents which had been received by the trustee or factor. But it does not appear that any thing was done at any of the meetings to preclude the pursuers from adopting separate measures, which their agents plainly all along conceived themselves entitled to resort to, if necessary, for their ultimate security, and intimated this opinion to the trustee so early as 25th March 1828, as well as in subsequent letters, dated 17th October 1828, 12th November 1829, and 20th August 1831. It does not appear that any answer was returned to these letters (at least none are produced), disputing this view of the pursuers' rights, and they certainly are not tied up by any accession since. So that the Lord Ordinary sees no ground for refusing to sustain this action, merely because the pursuers were willing that their debtor's estate should be conveyed to a trustee, for the purpose of being sold for payment of the debts secured upon it, and to receive their payment from such sale. That the estate has not been yet sold, seems fully to justify the separate measures now contemplated."

Thereafter, his Lordship, on 7th July, repelled the defences, &c., and the defender reclaimed. At advising,

Lord Justice-Clerk said, that this was a hopeless attempt to prove accession.

The Court adhered.

Second Division.-Lord Ordinary, Medwyn.-.Act.

du. David Mylne.-Brodies & Kennedy, W.S., and Hugh Macqueen, W. S., Agents.-Mr Ferguson, Clerk.-[J. W. H.] 18th December 1832.

No. 113.-WELLWOOD'S TRUSTEES, Raisers, v.
CLARKES, Claimants.

Settlement-Provision-Heir and Younger Children-Succession-Circumstances in which held, that, under a clause by a grandfather, providing a sum to be divided among the children of

his daughter, other than the heir entitled to succeed to the estate of his daughter's husband, the eldest son, although the succession had not yet opened to him, was excluded from a share.

Robert Wellwood, who died in 1820, held the estate of Garvock under a strict eutai!, descendible to heirsmale. He had two daughters: Isabella, married in 1800 to Clarke of Comrie, and mother of the claimants, and Mary, married to Johnstone of Sands (an entailed estate); both of whom had families. Wellwood settled on Mrs Clarke, at her marriage, an annuity which determined. But as, on the marriage of Mrs Johnstone, he had settled £5000 upon the younger children to be procreated of that marriage, he executed a bond of provision in favour of Mrs Clarke, bearing, that as

"he was now enabled to make a suitable provision upon ber and her family, equal to what be bad settled on Mrs Mary Wellwood, his youngest daughter, in her contract of marriage with Laurence Johnstone, Esq. of Sands, her husband, he bound and obliged himself, his heirs, executors, and successors, to content and pay to the said Robert Clarke, now of Comrie, and Mrs Isabella Wellwood, his spouse, in conjunct fee and liferent, and to the children procreated, and to be procreated, of the marriage between them, other than the heir entitled to succeed to the estate of Comrie, and, failing of such children other than the heir entitled to succeed to the estate of Comrie, to the heir himself in fee-the sum of £6000,"

payable at the first term after his death, and divisible in such proportions as their parents should appoint,with a restriction of Mr and Mrs Clarke's rights of liferent, during the life of any child other than the heir, and a provision, that

"if the said Robert Clarke shall survive his said spouse, and there be a child or children of the said marriage other than the heir entitled to succeed to the estate of Comrie, then the said Robert Clarke's right of liferent shall be restricted to £200 Sterling per annum during the existence of such child or children."

In April 1811, Wellwood executed a trust-settlement, which contained a narrative, that at the mar riage of his eldest daughter,

"he was not enabled to settle any portion on her, farther than an annuity payable to her husband, but which was to cease in a certain event, which has taken place. But at the period of the marriage between my youngest daughter and the said Laurence Johnstone, I was enabled, and did provide to and with her a portion of £5000, by her contract of marriage."

This trust-deed appointed the trustees, inter alia, to pay to my said daughter, Isabella" (Mrs Clarke), “the interest of the sum of £6000, as well as of her share of the residue of my fortune herein after-mentioned, during all the days of her lifetime, if she shall survive me, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first payment at the first of these terms that shall happen after my decease; and which interests, both of the foresaid sum of £6000, and of the share of the residue of my fortune, shall be at her own disposal, and no way subject to the jus mariti of her husband, which is hereby expressly excluded, neither shall the same be any ways affected by his debts or deeds; and, upon ber decease, in case she survives me, they shall pay over the foresaid principal sum of £6000 itself, to and among her children, whether of this or any succeeding marriage, in such proportions as she shall appoint, by a writing under her hand; and, failing such distribution, to them share and share alike, with a fifth part more of penalty, and the due and ordinary annual-rent of the said principal sum, from and after the term the interest has been paid to her, ay and until payment; but declaring always, that while there are younger children, neither the "heir" entitled to succeed to the estate of Comrie, nor the heir of any other

marriage my said daughter may enter into, who shall be entitled to succeed to an estate of £500 per annum, or upwards, shall be entitled to any part of the said sum of £6000: And, in case my said daughter shall predecease me, I hereby appoint my said trustees, and their foresaids, upon my decease, to pay over the said sum of £6000 to her children not entitled to succeed as aforesaid, in such manner as I shall appoint, by a writing under my hand; and, failing of such division, to them share and share alike, with interest and penalty in manner foresaid;-whom failing, to the child or children entitled to succeed to the estate of Comrie, or other estate of £500 Sterling yearly, or upwards, in such proportions as shall be fixed on by their mother, or, if she shall make no division, by myself; and, failing such division, to them equally, share and share alike;-whom failing, to the child or children of the said Mary Wellwood, my youngest daughter, other than her child or children entitled to succeed to the estate of Sands, or to an estate or estates of £500 per annum, and upwards, and that in such proportions as she shall divide the same; and, in case no division shall be made, to such children share and share alike;-whom failing, to the child or children of the said Mary Wellwood entitled to succeed to the estate of Sands, or to an estate or estates of the yearly value of £500 Sterling, and upwards; and if more than one child entitled to succeed to such estates, the same to be divided in such proportions as she shall think proper; and, failing of such division, to be paid to them share and share alike ;-whom all failing, to the said Isabella Wellwood, her heirs or assignees whatsoever," and ordered the residue of his fortune

"to be divided and bestowed as follows, viz.-In case I shall leave no lawful children other than the said Isabella and Mary Wellwoods, my said trustees and their foresaids shall divide the same equally; and bestow one half thereof upon my said daughter Isabella and her family, and the same shall descend and be payable in the same way and manner as I have appointed them to bestow the £6000 above mentioned: and the other half they shall bestow upon my said daughter Mary, in liferent, during all the days of her lifetime, if she shall survive me, and make payment of the interest thereof to her at two terms in the year, Whitsunday and Martinmas, by equal portions, and beginning the first payment at the first of these terms after my decease: And, upon her decease, in case she survives me, they shall pay over the foresaid half of the residue to and amongst her children, whether of the present or any succeeding marriage, in such proportions as she shall appoint by a writing under her hand; and, failing such appointment, to them, share and share alike, with a fifth part more of penalty in case of failure, and the due and ordinary annual-rent of the principal sum, from and after the term of payment until payment: But declaring always, that while there are younger children, neither the heir entitled to succeed to the estate of Sands, nor the heir of any other marriage my said daughter Mary may enter into, who shall be entitled to succeed to an estate of £500 per annum or upwards, shall be entitled to any part or portion of the said residue: And, in case my said daughter Mary shall predecease me, I hereby appoint my said trustees, and their foresaids, upon my decease, to pay over the said half of the said residue to her children not entitled to succeed as aforesaid, in such manner as I shall appoint by a writing under my hand; and, failing of such division, to them share and share alike, with interest and penalty in manner foresaid;-whom failing, to the child or children entitled to succeed to the estate of Sands, or other estate of £500 yearly or upwards, in such proportions as shall be fixed on by their mother or myself; and, failing such division, to them equally, share and share alike; -whom failing, to the child or children of the said Isabella Wellwood, my eldest daughter, &c. &c. as above, mutatis mutandis.

This trust revoked all prior contrary deeds, and reserved a power to revoke, alter, dispone, or burden. In March 1816, he executed an additional settlement, providing as follows:

"And considering it to be proper, that the provision of £6000, by the foresaid trust-deed and settlement, made and conceived by me in favour of Mrs Isabella Wellwood, otherwise Clarke,

my daughter, spouse to Robert Clarke of Comrie, Esquire, and her children, should be irrevocable, I do hereby recal and annul the power of revocation contained in the said trust-deed and settlement, in so far as relates to the said provision of £6000 in favour of my said daughter and her children."

Wellwood died in July 1820, survived by his two daughters and their families. Mrs Clarke died in May 1826, without having executed any deed of division, but leaving six daughters and four sons, of whom the claimant Andrew was the eldest and the heir-atlaw of Comrie, while Mrs Johnstone's eldest son was heir of entail in the estate of Sands. A residue of about £22,000 was realized, and brought into Court by a multiplepoinding in 1830. Claims were lodged for the heir, and for the younger children of Mrs Clarke, respectively. The former demanded onetenth of the £6000, and one-half of the residue, on the ground that he was not the heir entitled to succeed to Comrie, in the sense of the trust-deed, whatever his hopes of succession might be. The children pleaded-That the eldest son must be held as at present excluded, because both he and the estate were still in the same situation as at the date of the trust;-and that the settlement did not authorise an equal division among all Mrs Clarke's children.

"The Lord Ordinary (6th March 1832,) having heard parties' procurators, and thereafter considered the closed record and whole process-Sustains the claims of Andrew Clarke, Esq. and decerns in the preference and against the raisers of the multiplepoinding accordingly: Repels the claim of Miss Isabella Clarke and her other brothers and sisters, and decerns: Finds no expenses due by either party in this discussion.-Note.-The Lord Ordinary thinks the due construction of the words 'entitled to succeed,' in the deeds libelled, is having in him right to succeed, not mere spes successionis. This is not only the technical meaning, but the words were first used in reference to an estate actually entailed, where there already existed a right of succession, and were afterwards extended to the estate of Comrie, or any other estate worth £500 a-year; and the provision was made to relate to any of the children who might be entitled to succeed to an estate of £500 a-year. This shows that it was a special provision, not an ordinary provision for the daughters and younger children of a landed proprietor, excluding his eldest son as expectant heir. Such being the nature of the provision, it is difficult to think that, by the use of the words entitled to succeed,' Mr Wellwood meant to exclude any child who might have a mere spes successionis to any estate; for that spes might be, not the hope of a son succeeding to his father, but the uncertain chance of a remote relation, or mere substitute, no relation at all, standing as heir to some other person who had full power to alter, and no reason against altering the succession;-nay, who might have already altered it by a deed perfectly effectual, though private and not discoverable, and still leaving an apparent spes successionis on the face of the investiture. It will be considered, too, that if the eldest son were to succeed to Comrie, after drawing his share of this provision, there could then be nothing to prevent his father adding to the provisions of his younger chil dren by burdening that estate, so that this was not an event much to be dreaded. And, on the whole, the Lord Ordinary does not think himself warranted in extending the words to include a mere spes successionis."

The younger children reclaimed. At advising, 26th June 1832,

Lord Glenlee doubted whether the phrase "entitled to succeed," meant, having right to suceeed. It was impossible to suppose that the truster had in view, that the settlement was to have no effect unless in a certain event. He must have contemplated what has actually happened. Apparent heir might mean presumptive heir. The Court must just find out what was most consistent with the intention. It was a questio voluntatis—and