Jean Cant, Relict of Borthwick of Hartside v. Borthwick of Crookston
Date: 27 December 1726 Case No. No. 109.
How far heirs of tailzie are at liberty to provide wives.
The act 1685 regulates not the constitution of tailzies made prior to it.
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Betwixt these parties the question occurred, If tailzies made before the act 1685, anent tailzies, fall to be regulated thereby, so as to be ineffectual against creditors, if not registered, &c.
And for Jean Cant, it was pleaded, That the law makes no distinction, but lays down a plain and general rule, to disallow of all tailzies where the directions of the statute have not been observed, without any limitation or exception; and therefore Lord Stair, Tit. Infeftments of Property, § 58. near the beginning, speaking of the statute 1685, adds, “ That this statute did weaken the former tailzies with clauses irritant;” which it could not, did they not fall under the statute. And if better authority could be necessary, we have that of the Legislature in the act 33. 1690. There it is laid down for a rule, and a just one it is “ That such rights as are not in a man’s power to alienate by consent, should not be confiscated by his crime And, in consequence of this rule it is statuted, that, the possessor of an entailed estate should not forfeit in prejudice of the heirs of entail; but with this express proviso, ” That the right of tailzie be registrated conform to the act of Parliament in the year 1685;” which plainly shows the sense of the Legislature, that even a tailzie made before the act 1685 ought to be registered, otherwise to have no effect against forfeiture, and of consequence far less against creditors. And thus also it was determined, 28th July, 1725, Viscount of Garnock against the Master, &c. Sect. 7. h. t.
To which it was answered: This law has no retrospect; it gives directions concerning tailzies to be made, leaving those that were made to stand upon the principles of law then received; and where it says, “ That such tailzies shall only be allowed, &c. it cannot possibly understand any tailzies, but ” such as were to be made;” and had it been otherwise, the Legislature would certainly have found proper words to have expressed it plainly, and not left it to a construction or implication, since it was a case that could not escape notice. As to the authority from the act 33. Parl. 1690, it is true, the proviso of the act 1685 is there only mentioned, with no view to exclude former tailzies that were not in terms of the proviso, but sx eo quod plerumque fit; because the generality of settlements of that kind, were posterior to the act. As to the decision of the Viscount of Garnock, the Lords did not find, that the act 1685 regulates the constitution of tailzies made before the act, but only the transmission; and for good reason, for though the act has no retrospect to invalidate tailzies habilely constituted ab ante, it may well regulate the transmissions of tailzies; which transmissions are posterior to the act. To conclude, This act of Parliament has no retrospect; registration belongs to the constitution of tailzies; and if it was not necessary to tailzies before the act, the act has not made it necessary.
“The Lords sustained the tailzie, though not recorded conform to the act of Parliament 1685, in respect the same was granted before the act.”
There was another point debated betwixt these parties, If an heir of an entailed estate with strict prohibitory and irritant clauses, can give a life-rent provision in favours of a wife; or if the same is excluded by the generality of the prohibitive clause de non alienando?
And it was argued for Jean Cant the relict, who had got a bond of annuity from her deceased husband, That if not mentioned in the most express terms, it will never be understood any tailzier designed to restrict his heirs from making suitable provisions to their wives and children, which is necessary for the continuance of the tailzie, because otherwise it would be a tacit exclusion of marriage; and therefore a general clause, de non alienando, et non contrahendo debitum, will never exclude them.
It was allowed from the other side, That an heir of tailzie, however strictly tied up, is still understood to have a power of endowing his wife and children with rational provisions: But it was contended, that the wife’s share can never go beyond the terce, which is determined by the law to be a rational provision.
“The Lords found, The bond of annuity is comprehended under the prohibitive clause in the tailzie; but sustained the said bond, in so far as the same can be supported by a terce.”
