Inglis v. Gillanders

Held (rev. judgment of Lord Kyllachy) that the trustees had not acted ultra vires in making the destination of the estate of Newmore to the Page: 165 ↓

The institute under the deed of entail, Mrs Katherine Falconer Gillanders or Inglis, died in the year 1872 leaving three sons— George, John, and William. She was succeeded by her eldest son, George Inglis, as heir of entail. Her second son, George Gillanders Inglis, died on 10th August 1873, leaving no male issue, and her third son, William Hugh Inglis, died on 9th May 1877 leaving no issue. George Inglis had no heirs-male of his body, and was thus the sole existing heir of entail, unless the estate was to descend to the heirs designated by the entail of Highfield.

James Falconer Gillanders died in February 1881. On his death he was succeeded in the estate of Highfield by his son, George, who disentailed the estate of Highfield, and conveyed it to trustees for behoof of a series of heirs different from those called to the succession by the original entail. George Gillanders was therefore no longer the heir in possession of Highfield under the entail referred to in the trust-disposition of Francis Mackenzie Gillanders, and no one could thereafter be in possession of the estate as heir under that entail.

“I shall therefore make a finding to the effect I have mentioned, and pronounce decree in terms of the second and third conclusions of the summons, quoad ultra dismissing the action. In the circumstances, and having in view that a decision of the question raised was necessary in order properly to clear the pursuer's title, I make no finding as to expenses.”

The trustees executed a disposition and deed of entail in October 1869. They disponed the lands to the series of heirs other than the heirs of entail of Highfield in the very words of the destination contained in the trust-deed. The entail then proceeds thus—“Whom failing to James Falconer Gillanders, Esquire of Highfield, who is the heir now in possession of the estate of Highfield under the entail thereof executed by George Gillanders, … and failing the said James Falconer Gillanders, then to the other heirs-substitute in said entail of Highfleld.”