THOMAS GRAHAM STIRLING v JOHN DUNDAS, (Stirling's Trustee) (Court of Session)

By trust-disposition, dated in 1804, the late Sir Thomas Stirling conveyed his estate of Strowan, Little Cowden, Dalginross and Glentarff, and whole other means and estate, heritable and moveable, to trustees in trust, for payment of his funeral expenses, debts, expenses of management, legacies and bequests; and thereafter that the residue should be applied to such purposes as he should direct.

On the death of Sir Thomas Stirling, in May 1808, his trustees entered into the management of his estate; and Mr Graham having then no second son, he drew the rents till Martinmas 1811, being the first term after the pursuer, his second son, was born.

This deed of entail was brought under reduction by the pursuer, the second son of Thomas Graham. The action was raised in Mr Graham's lifetime, and called him and the other heirs of entail, and Mr Dundas, the surviving trustee of Sir Thomas Stirling, as defenders.

The pursuer founded upon the authority of Cuming's Trustees v. Cuming, 10th July 1832, and in reference to the express instructions of the truster, pleaded —That the trustees had, in the present case, as in that of Cuming, exceeded their powers; the trustees, in both instances, having acted erroneously upon a general clause which seemed to extend their powers beyond the special instructions.

The defenders contended —That the case of Cuming did not apply, as there there were no instructions to execute an ‘entail,’ but only a ‘settlement,’ and express instructions were given, and not extended by any general clause.