(1773) 2 Paton 309
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Held, where a party takes an entailed estate, on condition of devolving one he already possesses, on the next
heir of entail, that he is bound to do so to the heir pointed out by the entail, although the party who succeeds to both may have younger sons nearer the line of succession, whose possesion would carry out the intention of the maker, of having the two estates separately and distinctly possessed.
Walter Lawrie, Esq. of Redcastle, executed an entail conceived in the following terms of destination, with a clause of devolution added thereto. Failing issue of his own body male and female, “to James Lawrie of Skeldon, my nephew, and the heirs male of his body; which failing, to William Lawrie, his brother german, also my nephew, and the heirs male of his body; which failing, to Walter Lawrie, my nephew, son to the deceased Thomas Lawrie, surgeon apothecary in Stranraer, my brother german, and the heirs male of his body; which failing, to the lawful daughters procreate of the body of the deceased Mr. James Lawrie, minister of the gospel at Dalrymple, my brother german, successively; the eldest being always preferable, and succeeding without division, and the heirs male to be procreate of their bodies,” &c.
Then followed this clause of devolution, “That in case the above James Lawrie, my nephew, or his heirs male shall, by virtue of the present tailzie, succeed to the lands hereby provided and tailzied, then and in that case, he and his heirs shall be obliged to convey and dispone the lands of Over Skeldon in favour of the said William Lawrie, his brother, and the heirs male of his body: And if the said William Lawrie shall succeed to the lands hereby tailzied, and shall likewise succeed to the lands of Over Skeldon, then and in that case he shall be obliged to convey and dispone the same to the said Walter Lawrie free of any burden: And sicklike whoever else of the heirs of tailzie above mentioned shall succeed to the foresaid lands and estate hereby tailzied, and shall at the same time have in their-person the right to the foresaid lands of Over Skeldon, shall be bound to convey the same in favour of the next heir of tailzie following the person.”
Besides this deed, on the nephew James Lawrie of Skeldon's marriage, his uncle became a party to his marriage articles, whereby the said James Lawrie was not only expressly taken bound to convey Skeldon, but actually per verba de prœsenti to dispone the same in terms of the tailzie.
Walter Lawrie, the maker, died without issue. His nephews, William and Walter, had both predeceased him without issue; and his estate of Redcastle then devolved on
The next heir of entail, failing issue of James Lawrie's body, was Margaret Lawrie, the eldest daughter of Mr. James Lawrie, minister of Dalrymple, and mother to the appellant. On the pursuer's succeeding to Redcastle, she claimed the estate of Skeldon, and insisted that it should be conveyed to her, in terms of the condition or clause of devolution contained in the said entail. In an action brought by her, the Lords found that James Lawrie was bound to denude of the estate of Skeldon, and, in consequence of this judgment, the Skeldon estate was conveyed accordingly.
Mr. James Lawrie dying without issue, the Redcastle estate also devolved on Margaret Lawrie; whereupon the present question arose, Whether she was obliged to divest herself of the Skeldon estate in favour of the next heir of entail; and if so, whether that heir of entail was her sister, Anne Lawrie, or her own son, the appellant? Hence the present action to determine that question.
Jan. 2, 1759.
“On the report of Lord Bankton, find that the defender Margaret Lawrie ought to make up titles to and denude of the lands of Over Skeldon in favour of Anne Lawrie, and her heirs.”
Against this interlocutor the present appeal was brought to the House of Lords.
Pleaded for the Appellant.—The apparent intent of the devolving clause in this entail being only to keep up two distinct separate representations, this would be more effectually carried out by confining the succession to the nearer heirs, than allowing it to deviate into more remote. Hence Margaret Lawrie's second son was the proper party in whose favour the devolving clause was conceived; and however reasonable, therefore, it might be to exclude Margaret Lawrie herself, and her eldest son, as her heir apparent, yet there was no shadow of reason for excluding the second son, or other younger children.
Pleaded for the Respondent.— This is merely a question of construction, which must depend on the intention of the maker. By the deed of entail, failing Walter Lawrie and his heirs-male, the estate was to go to the lawful daughters successively of the Rev. James Lawrie. And it is manifest that the deed binds the person succeeding to both the estates of Redcastle and Skeldon, to convey the Skeldon estate to the next heir of entail following the person, and the heirs of his or her body so succeeding; and if the person so
After hearing counsel,
Lord Mansfield observed, in giving judgment, that this was the clearest case that ever came before the House. He should affirm, but would refuse to give costs, because the appellant had the misfortune to be born between two estates, and to get neither.
It was ordered and adjudged that the appeal be dismissed, and that the interlocutor therein complained of be, and the same is hereby affirmed.
Counsel: For the Appellant,
For the Respondents, Andrew Crosbie, Tho. Lockhart.
Note.— Unreported in Court of Session.