(1847) 6 Bell 30
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1847.
Subject_Deeds, Construction given to. — Shifting Clause. — Clause of Devolution. —
—A clause in a marriage contract and entail of the lands of Whiteacre, the property of the wife, declared, that in case an heir of the marriage should “succeed to the honours and estate of Blackacre,” to which the husband was expectant heir, then that heir's second son, and failing a second son, then his eldest daughter should “succeed” to the lands of Whiteacre, the property of the wife. A female heir of entail succeeded to the honours and estate of Blackacre, and married a husband who was possessor of lands in England, settled upon him for life, with remainder to his sons in tail male, By Act of Parliament the lands of Blackacre were exchanged for those English lands, and settled in the same way—the effect being, to set the English estates free and enable the husband to sell them for payment of his debts, and to substitute the lands of Blackacre in the uses of the English settlement, and give them to the children of the marriage in tail male. Held, that an heir under the entail of Whiteacre taking the lands of Blackacre under this arrangement, did not “succeed” to these lands in the meaning in which that term was used in the entail of Whiteacre, and that the shifting clause in that entail did not thereby come into operation.
In the year 1720 the Countess of Glasgow was heiress in possession in her own right of the lands of Rowallan, the estate of the ancient family of Mure. In contemplation of the marriage of her daughter. Lady Jean Boyle, with James Campbell,
By this contract, James Campbell bound himself to invest 3500 l. of his own money, and 1500 l. which he was to receive from the Earl of Glasgow, upon real securities, in favour of himself and the heirs male and female of the intended marriage. “And in case there shall be one heir-male existing of this present marriage at the time of the said Master James Campbell his decease, and not succeeding to the estate of Rowallan, through the existence of one heir-male betwixt the said David Earl of Glasgow and the said Jean Countess of Glasgow, his lady, he binds and obliges him and his foresaids to provide and secure the said heir-male in the sum of other 5000 l. sterling out of the first and readiest of any estate, heritable or moveable, that shall belong to him at the time, at least that the said heir-male shall succeed to an estate answerable to the said other 5000 l. sterling: but if the said heir-male of this marriage shall succeed to the said estate of Rowallan, then this obligement for payment of the said other 5000 l. sterling, or giving lands or other effects for the samen, shall be void and null.” And on the other part, the Earl of Glasgow bound himself to pay to Campbell 1500 l., in full of everything his daughter could claim through his decease. The contract then continued thus:
“And moreover, in regard the said Jean Countess of Glasgow, heretable proprietrix of the lands and barony of Rowallan after disponed, is resolved to settle the succession of the said estate, with consent of the said David Earl of Glasgow, her husband, in favours of the heirs-male procreate or to be procreate betwixt her and the said Earl; which failzieing, to the said Lady Jean Boyle, and the heirs-male of her body to be lawfully procreate betwixt her and the said Mr. James Campbell, her promised husband; which failzieing, to the other heirs of tailzie after mentioned (with and under the express
reservations, conditions, burdens, provisions, and others after mentioned)”
therefore the Countess granted procuratory of resignation for new infeftment in favour of herself and her husband, and the longest liver of them, in life-rent, and the heirs-male lawfully to be procreate betwixt them in fee; which failzieing, to the heirs-female of the body of the said heir-male, the eldest always secluding the rest and succeeding without division; which also failzieing, to the said Lady Jean Boyle, and the heirs-male to be lawfully procreate of her body of this present marriage, and the heirs-male of their bodys; which failzieing, to the heirs-female to be procreate of the body of the heir-male of this marriage, the eldest always secluding the rest and succeeding without division, as said is; which failzieing, to the heirs-female to be lawfully procreate of the said Lady Jean Boyle her body of this present marriage, and the heirs male or female of their bodys, the eldest heir-female always secluding the rest and succeeding without division, as said is; which failzieing, to the heirs-male of the said Lady Jean Boyle her body of any lawfull subsequent marriage, and the heirs-male of their bodys; which failzieing, to the heirs-female of the said heir-male; which failzieing, to the heirs-female of the said Lady Jean Boyle her body of any lawfull subsequent marriage, and the heirs male or female of their bodys, the eldest female always secluding the rest and succeeding without division, as said is; which failzieing, to Lady Ann Boyle, second lawfull daughter procreate betwixt the said David Earl of Glasgow and the said Jean Countess of Glasgow, his lady, and the heirs-male of the said Lady Ann Boyle her body, and the heirs-male of their bodies;” and a series of other substitutes.
A clause provided that the heirs of entail should bear the arms of Mure of Rowallan, in these terms:
“And sicklike, it's hereby specially provided and declared, and appointed to be
contained in the infeftments to follow hereupon, that the whole heirs-male who shall succeed to the said estate of Rowallan (conform to the clause of succession above mentioned) shall be holden and obliged to assume and continue the sirname of Mure, and to carry and retain the proper arms of the family of Rowallan in all time coming; and also declaring, that if the saids lands and barony of Rowallan, teinds and others foresaids, with the pertinents (by the deficiency of heirs-male), shall fall to the heirs-female, and that they shall succeed to the samen in the event foresaid, by vertue of the substitution and tailzie @mentioned, then and in that case the eldest heir-female shall exclude all other and succeed without division, and be bound and obliged to marry a gentleman of the sirname of Mure, or at least whose children to be procreate of the saids rex'ive marriages, and succeeding as said is, shall be bound and obliged to carry and retain the said sirname and arms of the family of Mure of Rowallan.”
A subsequent clause, upon which the principal question in the appeal was raised, was thus framed, “And in like manner, it's hereby expressly provided and declared, and appointed to be contained in the infeftments to follow hereupon, that in case it should fall out that there be only one son of this present marriage procreate betwixt the saids Master James Campbell and Lady Jean Boyle, who shall succeed to the honours and estate of Loudoun, tho' there be daughters, then and in that case it's hereby declared, that the second son of this only son of this marriage shall succeed to the said estate of Rowallan; and failzieing a second son, then the eldest daughter of this only son is to succeed to the said estate, and who shall be obliged to marrie and carrie the arms of Rowallan, in the terms and under the irritancies of the tailzie @mentioned; but if there be two sons of this present marriage, then the second son is to succeed to the estate of
At the date of this contract, the family honours and estates of Loudon were enjoyed by Hugh the third Earl, and brother-german of James Campbell, the destination of the estates by the titles being “in favour of Hugh Earl of Loudoun, and the heirs-male lawfully procreated or to be procreated between him and Margaret Countess of Loudoun, his spouse; whom failing, to the heirs-male to be lawfully procreated of the body of the said Hugh Earl of Loudoun in any subsequent marriage; whom failing, to any descendant of the body of the now deceased John Earl of Loudoun,” (i. e. the 1 st Earl, Chancellor,) “grandfather of the said Hugh Earl of Loudoun, whom the said Hugh Earl of Loudoun shall name by a writing under his hand at any time of his life, and even on deathbed, with and under such conditions, provisions, restrictions, limitations, qualifications, reservations, clauses irritant and resolutive, or otherwise, as should seem fit to him to insert therein; and failing such destination being made by the said Hugh Earl of Loudoun, or the person or persons so to be named, to the heirs-male descending of the body of the said deceased John Earl of Loudoun; whom failing, to the heirs whatsoever descending of the body of the said deceased John Earl of Loudoun; whom failing, to the heirs whatsoever
The Countess of Glasgow never had any sons; and of the marriage of Lady Jean Boyle with Campbell only one son and two daughters were born; both of the daughters died without issue.
In 1773, the son, James M. Campbell, upon the death of his mother, Lady Jean, was served heir to her, and made up a title to the lands of Rowallan under the procuratory in the contract of marriage.
In the year 1782, James M. Campbell became Earl of Loudon, and entitled to the inheritance of the family estates of Loudon, which after the death of Earl Hugh had descended upon his son John, the fourth Earl, by whom they had been conveyed to trustees for payment of his debts. Accordingly, he was served heir-male and of line in general to his predecessor.
In the year 1786, James M. Campbell Earl of Loudon died, leaving an only child, Flora, who, under the destination of the honours and estate of Loudon, became entitled to them in her own right; and, under the contract of marriage of her grandmother, became also entitled to the estate of Rowallan.
In 1787, Flora made up her title to the lands of Rowallan, by service and infeftment, as heir-female of tailzie, and provision under the contract. And in 1790, the surviving trustee of the Loudon estates for payment of debts, conveyed to her such of these estates as remained unsold, which thereby became vested in her in fee-simple. The two family estates were thus united in the person of Flora Countess of Loudon.
In the year 1804, Flora Countess of Loudon married the Earl of Moira. Of this marriage there were born the following children: Lady Flora Hastings, in 1806; Francis George Lord Mauchline, in 1807, who died in the year in which he was born; George Augustus Francis, afterwards Marquis of Hastings, in 1808; Lady Sophia, in 1809; and two other daughters.
At the period of his marriage the Earl of Moira was possessed of considerable estates situated in England, which were settled upon the Earl for life, with ultimate remainders to the use of his first, second, and other sons successively in tail male, remainder to the Earl, his heirs and assigns. By the settlement made in 1804, upon the marriage of the Earl and the Countess, these English estates were limited to trustees for a term of 100 years, for securing a yearly rent-charge of 1500 l. for the Countess, and for another term of 3000 years for raising 10,000 l. for portions for the children of the marriage, other than an eldest son.
In the year 1808, an Act of Parliament was passed, which after reciting the marriage between the Earl of Moira and the Countess of Hastings, and the settlements under which the Earl held these English estates, and that the Earl had charged the lands, under powers in that behalf given by the settlements, with a mortgage-debt of 10,000 l., continued thus:
“And whereas the said settled estates comprised in the first schedule,”
(being the English estates,) “are inconvenient as a family or settled estate, by reason that they consist for the most part of small and detached farms and tenements, inconvenient for management and superintendence, and let at small rents, rendering the collection of them very expensive, and the said rents are subject to considerable deductions for repairs of the buildings on the premises: and whereas the said Flora Mure Countess of Loudoun is the absolute proprietor in her own right, and by way of separate estate, of the castle of Loudoun, in the county of Ayr in Scotland, the ancient seat and residence of her family, and of divers lands, farms, and hereditaments belonging to the same castle, and forming a very desirable demesne thereto; but the said lands, farms, and hereditaments are now subject to or may be affected with or for the whole debts or engagements of the said Flora Countess of Loudoun and her predecessors in the said estate, and such castle is a principal
And be it further enacted, that the manors and other hereditaments comprised in the said first schedule to this Act annexed, and hereby vested in the said Lord Kinnaird and Lord Arden, their heirs and assigns, as aforesaid, shall be held by them, but subject to the said mortgage for 10,000 l. and interest, in trust, for such person or persons, and for such ends, intents, and purposes, and under and subject to such powers, provisoes, declarations, and agreements, as the said Flora Countess of Loudoun, at any times or time hereafter, and from time to time, as well when covert as sole, and not-withstanding her coverture by her present or any future husband, by any deed or deeds, or instrument or instruments, in writing, to be sealed and delivered by her in the presence of two or more credible witnesses, and attested by the same witnesses, or by her last will and testament in writing, or any writing in the nature of or purporting to be her last will and testament, or any codicil or codicils thereto, to be signed, published, and declared by her in the presence of three or
And be it further enacted, that from and immediately after the passing of this Act, all and singular the castle, farms, lands, and hereditaments, mentioned and enumerated in the said second schedule to this Act annexed, being Loudoun Castle and part of the estates, together with their rights, royalties, members, easements and appurtenances, and the reversion and reversions, remainder and remainders, rents, issues, and profits of all and singular the same premises, shall be absolutely freed and discharged of and from all the present estate, right, title, interest, claim, and demand of her the said Flora Mure Countess of Loudoun, and her heirs, and be vested in and settled upon the said Charles Hope and William Adam, their heirs and assigns, upon trust, to convey, settle, and assure the same, to and for such uses and estates, and under and subject to such charges (other than and except the said mortgage debt of 10,000 l., and the interest thereof, and the said term of 1000 years for securing the same,) as would at the time of such settlement, by virtue of the several hereinbefore recited indentures or any of them, have been subsisting of and concerning the said manors, farms, lands, and hereditaments
Saving always to the King's Most Excellent Majesty, his heirs and successors, and to all and every other person and persons, bodies politic and corporate, his, her, or their heirs, successors, executors, administrators, and assigns (other than and except the said Francis Earl of Moira and Flora Mure Countess of Loudoun, his wife, respectively, and their respective heirs and assigns, and the first and other sons of the said Francis Earl of Moira, and the heirs-male of the respective bodies of the same sons and the daughters and younger sons, for whose portions the sum of 10,000 l. hath been appointed as aforesaid, and the said Charles Hope and William Adam, and Sir Thomas Hutton and Joseph Hill, as trustees of the said several terms of one hundred years and three thousand years, appointed to them respectively as aforesaid, and their respective executors, administrators, and assigns, and the said William Adam, his heirs and assigns, as trustee of the inheritance conveyed to him and them by the said Elizabeth Countess Dowager of Moira, in remainder or reversion as aforesaid), all such estate, right, title, interest, claim and demand of in, to, or out of, the hereditaments mentioned in the said several schedules to this Act annexed, or any of the same hereditaments, or any part thereof, as they, every or any of them, had before the passing of this Act, or could or might have had, held, or enjoyed, in case this Act had not been made.”
While this statute was being passed, the Earl of Moira granted the following obligation as explanatory of the intentions of himself and the Countess:—
“I, Francis Earl of Moira, Lord Rawdon, considering that, in case the Bill now depending in Parliament, for exchanging part of my settled estates in
England for part of the estates of Flora Mure Countess of Loudoun, my spouse, in Scotland, shall pass into a law, the said estates now of the said Countess will be settled to the like uses as my said estate now stands settled; and considering that, as I am entitled to the reversion in fee of the said last-mentioned estate upon the failure of issue-male of my body, and will, of consequence, have the same right and interest in the estate of the said Countess which is to be given in exchange; and it's my will and intention that, in case of the failure of issue-male of my body, the said estate should go and descend to the said Countess and her right heirs succeeding to her title and dignity, and not to my own right heirs if they should be different; I do, therefore, hereby bind and oblige myself, as soon as the said estate now belonging to the said Countess, and proposed to be exchanged as aforesaid, is settled in pursuance of the Act so expected to pass, to make, execute, and deliver such deed or deeds, as by the Right Honourable Charles Hope and William Adam, Esq., the trustees named in the said Bill, or either of them, shall be judged necessary and proper for carrying my said purpose and intention into effect: And I consent that the said estate now of my said wife shall, if that is practicable and judged proper, be immediately and directly settled, failing me and the heirs-male of my body, upon her and her right heirs succeeding to her dignity, in and by the deeds which, by the said proposed Act, are directed to be framed and executed at the sight or by the direction of the Court of Session, provided, nevertheless, that in any conveyance or settlement of the said estate to effectuate my said intention, the same shall be declared subject to and charged with all and every sum and sums of money, being the proper debts of the said Flora Mure Countess of Loudoun, which shall be discharged out of the proceeds of my said estate proposed to be settled on her by the said Bill or otherwise by me out of my separate estate and effects, in
such way that the amount of the said debts, in the case of the right heir of the said Countess being different from my right heirs, and becoming entitled to the estate which was hers, shall be payable to my said heirs by hers; and I hereby empower the said Charles Hope and William Adam, or either of them, and the survivor of them, and the heirs of the survivor, to sue, if necessary, for implement of this obligation, and to exhibit the same to the Court of Session, and otherwise to do as to them shall seem proper, so as that my declared purpose may be carried into execution.”
Proceedings were afterwards adopted for completing an entail of the estates of Loudon, in terms of this Act of Parliament, and in June, 1809, the Countess, with consent of the statutory trustees and of the Earl, executed a deed, which after reciting the Acts of Parliament, continued thus:
“Now seeing that the lands and estates comprised in the said second schedule to the said Act, and hereinafter particularly conveyed, are now exonerated of all the debts and engagements of me the said Flora Countess of Loudoun, and my predecessors, affecting the same at the time of passing the said Act, or made to affect the same within the time thereby limited and now elapsed, and in order to charge and burden the same agreeable to the law and forms of Scotland, as effectually as the estates in England intended to be exchanged stood charged at the time of passing the said Act, (excepting the said mortgage debt of 10,000 l., which is, in terms and by the provisions of the said Act, to remain a charge upon the said English estates), I am now, in manner after mentioned, to convey the said lands and estate in said second schedule, burdened with the payment of 1500 l. sterling yearly of jointure to me, to take place in the event of the decease of said Earl of Moira, and my surviving him during my life, and in bar of terce or dower, and also charged with the payment of 10,000 l. sterling, as a provision for the younger children of
the marriage between my said husband and me, in terms of said marriage-settlement, and to come in place of the charge for the same sum thereby created upon the English estate; and I the said Francis Earl of Moira, being desirous and consenting, as is testified by my subscribing these presents, that the share, right, and interest which I had in the English estate, termed the reversion in fee, and which, according to the terms of the said Act of Parliament, I am entitled to have and hold in the Scotch estate, should nevertheless go to and be invested in the said Flora Mure Countess of Loudoun, and her heirs hereinafter mentioned, in as far as the said purpose can be effectuated according to the law of Scotland; and I the said Countess being willing and desirous to comply with the obligation I am under by the said Act, with regard to conveying the said lands and estates comprised in the second schedule to the said Act, and hereinafter mentioned, to the same uses and estates, and under and subject to such charges (other than and except the said mortgage debt of 10,000 l., and interest thereof,) as, by virtue of the several indentures in the said Act, and herein recited, would have been subsisting of and concerning the said manors, farms, lands, and hereditaments comprised in the first schedule annexed to the said Act, in case the said Act had not passed, or as near thereto as the laws of Scotland, and the deaths of parties and other circumstances, and the change of intention with regard to the said reversion, will permit.”
The Countess then disponed the castle and part of the Loudon estates, “to and in favour of the said Francis Earl of Moira, and failing him by decease, to and in favour of George Augustus Rawdon, commonly called Lord Mauchline, eldest, and at present the only son of the marriage between the said Francis Earl of Moira and me the said Countess, and the heirs-male of the body of the said George Augustus Francis Rawdon, Lord Mauchline; whom failing, to the second, third, fourth, and every other son, in
By an Act passed in the year 1813, the remainder of the Loudon estates was exchanged for other English estates, held by the Earl under the same settlements as the lands embraced by the Act passed in 1808.
This Act recited that the lands to be affected by it were convenient to be enjoyed along with the other lands affected by the prior Act, and were of greater value than the lands of the Earl for which they were to be exchanged; and enacted, that from the date of its passing, the English estates should be vested in Lords Kinnaird and Arden, “their heirs and assigns for ever, discharged of and from all the uses, estates, trusts, powers, provisoes, and limitations, remainders, charges, declarations, and agreements, by the same will of the said Francis Earl of Huntingdon, limited, expressed, and declared of and concerning the same hereditaments; and such hereditaments shall be in lieu of and in exchange for the farms, lands, and
It then enacted that the Loudon estates should be “absolutely freed and discharged of and from all the present estate, right, title, interest, claim, and demand of her the said Flora Mure Countess of Loudoun, and her heirs, and be vested in and settled upon the said Charles Hope and William Adam, their heirs and assigns, upon trust, to convey, settle, and assure the same to and for such uses and estates, and under and subject to such charges as would at the time of such settlement, by virtue of the said will of the said Francis Earl of Huntingdon, have been subsisting of and concerning the said farms, lands, and hereditaments comprised in the said first schedule to this Act annexed, in case this Act had not passed, or as near thereto as the laws of Scotland, and the deaths of parties, and other circumstances, will admit,” and directed that the proper deeds should be executed for effecting the purposes intended, and contained the same saving clause as was in the Act of 1808.
On the 27th of January, 1815, commissioners of the Earl and Countess of Moira executed an entail having this recital: Now seeing that the lands and estate comprised in the said second schedule to the said Act, and hereinafter particularly conveyed, are now exonerated of all the debts and engagements of the said Flora Countess of Loudoun and her predecessors, affecting the same at the time of the passing of the said Act, or made to affect the same within the time thereby limited, and now elapsed, and in order to settle the same agreeable to the laws and forms of Scotland, as effectually as the estates in England intended to be exchanged,
Feudal titles were made up in the person of the Earl of Moira under both of these entails by crown charter and infeftment. And subsequently to the excambion effected under these Acts of Parliament, the English estates were sold, and with the purchase money the debts of the Earl were paid off.
In the year 1826, the Earl of Moira, now become Marquis of Hastings, died, and was succeeded by his son George Augustus Francis, who made up his titles to the Loudon estates as heir of entail and provision under the two entails by service and infeftment.
In the year 1839, Flora, the eldest daughter of the Marchioness of Hastings, died. In 1840 the Marchioness died, leaving of her children surviving her, George Augustus Francis, now Marquis of Hastings, and three daughters, the eldest of whom was the Appellant, Lady Sophia Frederica, Marchioness of Bute. And at the period of her death her son, the Marquis of Hastings, had one son, the Respondent, Paulyn Reginald Serlo, then Earl of Rawdon, and three daughters, of whom the eldest was the Appellant, Lady Edith Rawdon Hastings.
Claims to the Rowallan estates having been asserted on behalf of the Marchioness of Bute and Lady Edith Hastings, on the ground that George Augustus Marquis of Hastings, having succeeded to the Loudon estates, could not likewise take the Rowallan estates, but was debarred therefrom by the terms of the settlement on the marriage of James Campbell and Lady Jean Boyle, it was arranged that the Marquis should make up a title by service as heir of tailzie and provision to his mother the Marchioness of Hastings, and that these claims should be tried by actions of declarator at the instance of the respective parties. Accordingly George Marquis of Hastings made up a title in this form, and then brought an action in 1841, concluding to have it found that he had not succeeded to the Loudon estates in the sense in which the term was used in the entail of Rowallan—that he had right to the Loudon estates in satisfaction of his right to the English estates under the settlements thereof, which right he had not by succession, but as a purchaser, and consequently the clause of devolution in the entail of Rowallan had no application, and would not prejudice
The Appellant, the Marchioness of Bute, likewise brought an action, setting forth that her brother, George Augustus Marquis of Hastings, having succeeded to the lands and honours of Loudon, the right of succession to the lands of Rowallan under the entail thereof had devolved upon her, and concluding to have that found, and her brother ordained to denude in her favour; or otherwise, that the titles made up by him should be reduced and set aside.
Again, Lady Edith Hastings brought an action, setting forth that as her father, George Augustus Marquis of Hastings, had succeeded to the honours and estates of Loudon without having a second son, she, as his eldest daughter, was entitled to succeed to Rowallan under the entail of that estate, under an obligation to denude in the event of her father afterwards having a second son, and concluding to have it found that her father had no right to succeed to Rowallan—that the Marchioness of Bute had no right to succeed thereto—that her father having only one son, she, as his eldest daughter, was entitled to succeed to these estates, and that they had devolved to her as heir under the contract of marriage, or at least that she would be so entitled in the event of a second son not being born to her father, and that in the meanwhile the rents of the lands should be managed and improved for behoof of
After these different actions had been conjoined, and while they were still in dependence, a second son, Lord Henry Hastings, was born to the Marquis. In the year 1842 an action was brought in the name of Lord Henry, setting forth that he, as the second son of his father, was entitled to succeed to Rowallan in consequence of his father having succeeded to the estates and honours of Loudon, and concluding for a declarator of this right, with other consequential conclusions.
This last action was followed by a second action at the instance of Lady Edith, to have it found that her right to succeed to Rowallan vested on the death of Flora Marchioness of Hastings, at which period her father had no second son, and that her right was not affected by the subsequent birth of Lord Henry Hastings.
These two new actions were conjoined with the previously depending ones. Subsequently George Augustus Marquis of Hastings died, and was succeeded in his titles and estates by the Respondent, Paulyn Reginald Marquis of Hastings, who was sisted as a party to all these actions.
The Court ordered cases for the parties to be prepared, and laid before all the Judges for their opinion, and thereafter, on the 16th November, 1844, in conformity with that opinion, pronounced the following interlocutor:—
“Find that the deceased George Marquis of Hastings was entitled to succeed to, and complete feudal titles to, the estate of Rowallan at the death of his mother, the late Countess Marchioness, as heir of taillie under the Rowallan entail, and that his right was not excluded by the clause of exclusion or devolution in the said entail, in terms of the first declaratory conclusion of the summons at the instance of the late Marquis; and, in respect thereof, Find that the present Marquis of Hastings, the eldest son of the late Marquis, is now entitled to succeed to, and possess,
the estate of Rowallan, as nearest and lawful heir of taillie and provision to his father, and has the sole right and title to the said estate: And, separatim, Find that the clause of exclusion or devolution, according to its sound construction, did not apply to, or affect, the late Marquis, and did not exclude him from the succession to the said estate of Rowallan: Therefore, in the action originally raised in the name of the late Marquis, and now insisted in by the present Marquis, decern and declare to the effect foresaid, in terms of the first and fourth conclusions of the summons, and repel the whole defences of all the defenders thereto: And in the counter actions at the instance of Lady Sophia Hastings, Lord Henry Hastings, and Lady Edith Hastings, respectively, sustain the defences of the late Marquis of Hastings, and assoilzie the present Marquis of Hastings from the conclusions of all these counter actions.”
The appeal was taken against this interlocutor by the Marchioness of Bute, Lady Edith Hastings, and Lord Henry Hastings, who had a common interest in maintaining against the Marquis of Hastings, first, that the shifting or devolution clause in the contract of marriage, 1720, was so framed as to be applicable to and take effect against not only the sons of the marriage, but the whole series of heirs called by the contract upon these terms in the later branch of the clause, “and that the succession to the said estate of Rowallan, in case any of the heirs of this marriage shall succeed to the estate of Loudon, shall take place according as is above mentioned in all time coming.” And second, that the clause had come into operation, (by the Marquis of Hastings having come into possession of both Rowallan and the Loudon estates,) under the words in the first branch of the clause, that in case there should be a son of the marriage “who shall succeed to the honours and estate of Loudon,” then it was declared that the second son of that son “shall succeed to the said estate of Rowallan.”
But each of the Appellants had a distinct interest in maintaining against the others a third question, that if the clause had in the circumstances come into operation, it had done so in favour of the individual Appellant, and not of the others.
In consequence of the conflicting interests of the Appellants under the third of these questions, each Appellant was allowed to be heard separately by his counsel, and very elaborate arguments followed upon all the three questions. But the second was the only one upon which the House delivered an opinion, and therefore is that to which the subsequent statement will be confined.
Lord Advocate and Mr. Bethel for the Marchioness of Bute.—If the shifting or devolving clause by its terms applies to the Marquis of Hastings, the circumstances under which he took the barony and estates of Loudon are not such as to free him from its operation. When the Countess of Glasgow framed that clause in the contract of marriage, she contemplated the possibility of the succession to the estate of Rowallan, and to the honours and estates of Loudon, uniting in the same person. To prevent that union, in whatever way it might be accomplished, and in case any of the heirs of the marriage should become possessed of the Loudon estates, to make Rowallan pass to another and inferior line of heirs, was the object she had in view.
The effect of the arrangement accomplished by the Acts of Parliament, was merely to substitute the Loudon estates under the settlement in tail of the English estates, and to set the English estates free from that settlement for the purposes of sale. But the mode in which that was done by the first Act was to make the lands embraced by it, after serving the uses of the English settlement, descend, not, as the English lands would have done under the settlement in tail, to the heirs of Lord Hastings, but as the Loudon estates would have done under their titles before
That case does not arise. Not only is the intention of the settlor violated, but so are the terms used by her to express that intention. In common and ordinary parlance, the Marquis of Hastings succeeded to the Loudon estates as first tenant in tail under the Act of Parliament substituted for the English settlements. The term “ succeed” is not used by the settlor in any other sense than this popular one.
As far as regards the honours of Loudon, the case is free from all doubt, as unquestionably the Marquis did succeed to them in the strictest sense of the word. But it is said the clause does not apply, because he did not succeed to both, to the estate of Loudon as well as the honours, in the meaning in which “succeed” is used in the settlement. But the very clause in question uses that word in reference to the case both of a different transmissibility and a different order of succession.
What the Acts of Parliament effect is to substitute Loudon for the English estates, and make it be taken under the trusts of the English settlement. How can this render inoperative the destination in a given event which is assigned to Rowallan?
All that was done, was to transfer to Loudon the particular force of limitation of the English estates, or to make an exchange of the one for the other, the effect of which is merely to give the party the same kind of interest in, and benefit from, the estate taken in exchange, as he had in the estate given. The arrangement in fact amounts to a settlement of the Loudon estates by the Marchioness of Hastings, under which the present Marquis may as justly be said to succeed as under the settlement of Rowallan. But after the destination of Rowallan had received a certain character and quality, by the possibility of its ownership being conjoined with that of Loudon, any subsequent alteration in the ownership of Loudon was immaterial to affect the destination of Rowallan.
If the entail of Rowallan had been made in the year 1600, in the year 1700 an Earl of Loudon had sold Loudon, in 1720 another Earl had bought it back, and in 1820 Loudon coming
The present Marquis was an infant at the date of the Act of Parliament, and a great many years afterwards he succeeds to Loudon as tenant in tail.
There could not be any distinction, for the legislature in dealing with the rights of the infant acted for him. The Act must be treated for this purpose as a mere conveyance. But how is it to affect Lady Glasgow's entail of Rowallan? To her it was matter of indifference how Loudon was dealt with, or by what means it was carried down; all she had in view was its union in the same person as the possessor of Rowallan.
Fazakerly v. Ford, 1 Ad. & Ellis, 897, is supposed to be an authority against the Appellants, but there the clause made express reference to the title under which the estate was “to devolve,”—it was expressly under a specified will, and as it did not come by the will, to have made the shifting clause take effect, could only have been accomplished by doing violence to its express terms. But that case is an authority for an enlarged meaning of the word “succeed,” for there the Vice-Chancellor held “devolve” to mean “a taking in succession by virtue of the limitation.”
Sir F. Kelly and Mr. D. Mc Neill were heard to maintain the same arguments upon this branch of the case on behalf of Lord Henry Hastings, and
Mr. Stuart and Mr. Moir on behalf of Lady Edith Hastings.
Mr. G. Turner and Mr. Adam Anderson were heard in answer for the Marquis of Hastings, and
The Lord Advocate in reply.
On the part of the Appellants much objection was taken to what was said to be an improper use of a technical meaning of the word “purchase” in the English law, in which sense alone it was said that the late Lord Hastings could be treated as a purchaser of the Loudoun estate. But it appears to me that a much more confined and inadmissible use has been made of the technical expression, “succeeding,” used in Scotch entails, for it appears to me that the late Lord Hastings was not only a technical but an actual purchaser; but that he was rather a technical, not an actual successor to those estates, in the sense in which that term is used in the entail. But the terms themselves must decide this. The entail provides, if there be only
The contract matrimonial was between the heiress of the estate of Rowallan and the heir expectant of the honours and estate of Loudoun. If it had been intended that no heir of Rowallan under the entail should hold the honours and estate of Loudoun, how easy would it have been to have said so; instead of which the shifting is to take place upon certain events only, so little comprehending all possible events, that in two generations both estates have been enjoyed by the same person. There is, therefore, no general intent manifested, to effectuate which violence ought to be done to the expression used. The question is merely what is the natural meaning of the words used, and do they, or do they not, include the particular circumstances which have happened?
To ascertain this, we must place ourselves in the position of the parties at the time the entail was created. They will prove that, as to Rowallan, those who would enjoy Rowallan would be parties entitled under the entail then created; and, as to Loudoun, they must have contemplated that the same persons were likely to become heirs of those honours and estates. When, therefore, the entail speaks of succession, the natural meaning of that expression would be succession under the then existing titles of those estates. But this is not left to depend upon the natural meaning of the terms used—for every
The meaning of the whole, therefore, is, if the existing expectancy of succession to the honours and estate of Loudoun shall be realized in the heir of the marriage, then in certain events Rowallan shall shift to certain other heirs of tailzie. It is not necessary to consider what variations in the course of succession might have come within the provision, as the title of the present Marquis is not in any respect under it. That succession in the person of Flora Marchioness of Hastings, became subject to her control, and she exercised her right by absolutely destroying it. It was through her that the late and present Marquis are connected with the house of Loudoun, and succeeded to its honours. But it is not through her that the late or present Marquis succeeded to the estate of Loudoun, but in the technical meaning of the term “succeed” in the Scotch law, through the first Marquis of Hastings, a stranger, which succession took place in the life-time of the late Marquis's mother.
Now, then, can this be a succession within the meaning of that expression in the entail, which must have meant a succession as heir of the house of Loudoun? Suppose Flora Marchioness of Hastings had, before the marriage with Lord Moira, sold the Loudoun estate, and that Lord Moira had afterwards purchased it, and that it had descended from him to the late Marquis, would that have been the succession contemplated by
It appears to me clear upon this point, that the event which has happened is not within the provision of the deed of entail, and that the interlocutor must be affirmed.
We have considered this case both since the argument at the bar and during the course of that argument, and especially immediately at its close. I mean those of us who heard it, including my noble and learned friend who is accidentally not here present, but who throughout has come to the same view of
I begin by stating that I rest not my opinion at all upon the view of the case which has been sometimes taken, and was even, to a certain degree, adopted on the part of the Respondent at the bar, at all events, it was dealt with in the argument to rebut that on the part of the Appellant, that we are here in a question of forfeiture, and that we are therefore to apply to the construction of the alleged clause of forfeiture, those very strict rules of interpretation which are applicable to cases of forfeiture. I regard this, no doubt, as a devolution, or shifting clause, as we call it in this part of the island, but I do not regard it in the light of a forfeiture, but rather in the light of a modification impressed upon the destination. I regard it as governing the destination, and not in the light of a forfeiture; at least, it is not at all necessary to my view of the subject, and to support that view, that it should be regarded as a forfeiture, and that the strictness of construction applicable to cases of forfeiture should be adopted in this case. But, regarding it merely in the light of a clause governing the destination, I am to look at the meaning of the words in the early part of the clause, “who shall succeed to the honours and estate of Loudoun;” and going on in the two subsequent limbs of the clause, “shall succeed to the estate of Rowallan;” and again, “is to succeed to the said estate;” that is in the clause ordering the arms and name to be retained; and, ultimately, the more important of the whole, upon which chiefly the argument now turns, that “the succession to the said estate of Rowallan, in case any of the heirs of this marriage shall succeed to the estate of Loudoun, shall
Now, I think, first of all, that taking the word in its common use, in common parlance it would be doing no little violence to that ordinary sense and acceptation of the term, if under the words “succession” and “succeed” we were to include (and yet the argument of the Appellant, and of Lord Moncrieff requires it,) every manner of way and any manner of way in which a party or an heir could take or become possessed of an estate. That is not the ordinary meaning of the term; “succeed,” in its ordinary sense, unless qualified by the context, or further explained by some antecedent or some subsequent expression, must be taken to convey the idea of one particular mode of succeeding, of taking, of becoming possessed, that is a succession (I fall naturally into the word, for it is the word which naturally occurs to one as expressive of the thing); it means inheriting; it means taking, not as a purchaser at all.
I observe that my Lord Moncrieff, in his argument, is impressed with this idea of it, for in one case he comes to speak of “succeeding in the estate of the family;” but “in the estate of the family” can only be meant to qualify and explain the expression, for it is to be one particular kind of succession rather than any other, and to the exclusion of any other, namely, taking by descent.
Then just look at the mode in which this word is dealt with in the preceding part of it, in what I call the first limb of the clause, “who shall succeed to the honours and estate of Loudoun.” Here “succeed” is applied to these two things, “honours” and “estate,” to one of which things it can have no application by possibility, except succession by descent, because no persons can take honours by purchase, and yet
Now these views, taken from the first and from the last part of this clause, appear very much to bear out the construction which the Court below have put, and which we are inclined and very clearly disposed to put, upon the word “succeed” in this part of the clause, “succeed to the said estate of Rowallan,
My Lords, the case of Taylor v. Lord Harewood appears to me a very important decision as regards our views of similar expressions and of similar subjects in an English deed. That case differs from this only in one respect, it is a great deal stronger for the construction which was there put upon it, and for the present construction now in controversy among the parties, than the case at the bar. I do not quite go along with one or two of the reasons upon which that case rested; but independently of those questionable reasons, there remain perfectly sufficient grounds for that decision, and that decision, which I think a perfectly clear and sound one, is, as I said before, considerably stronger than the case which is now before us.
One might suppose, as was ventilated in the course of the argument, cases of a sale to a stranger, or of an exchange with a stranger, and a subsequent repurchase of that estate from that stranger, where there was no privity whatever as regards the family, or any arrangement as to the family, where nothing could turn upon the qualification introduced (under the pressure, I think, of the argument and those considerations,) into Lord
My Lords, I must say, with the very greatest respect for the learned Judges who have argued the case in the Court below with their usual ability, that they do not appear to me to have shown their accustomed sagacity in forming for themselves, once for all, a clear view of the case. For the best way of deciding or of dealing with any case is to begin by first of all forming to yourself a clear and distinct view of what the question
I am exceedingly glad, however, as there was so much discussion
The Lord Advocate objected to any finding of costs, because of an agreement which he stated had been made between the parties upon the subject, and which was referred to in the judgment of the Court below. After a discussion between counsel as to the existence and extent of the alleged agreement, the
Mr. Turner.—Your Lordship's order applies to all the appeals, of course.
The following order was made in all the three appeals.
Ordered and adjudged, That the petition and appeal be dismissed this House, and that the interlocutors therein complained of be affirmed with costs.
Solicitors: Richardson, Connell, and Loch— Durant, Stewart, and Maxwell— Graham, Moncrieff, and Weems, Agents.