Scottish Court of Session Decisions

Subject_1 IMPLIED CONDITION.
Subject_2 SECT. VII.

A final Settlement frustrated in some particulars, how far effectual as to the remainder.

Countess of Strathmore and Lady Katharine Cochran
v.
Marquis of Clidesdale and Earl of Dundonald

Date: 20 February 1729
Case No. No 40.

A final settlement of entail, by which bonds of provision were granted, found to preclude the grantees from taking up as heirs, in prejudice of the entail, subjects accidentally omitted in the settlement, unless they would renounce their provisions.

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John Earl of Dundonald, by a bond of entail, made a total settlement of his estate to the heirs of tailzie therein expressed. Two days before subscribing this tailzie, he executed bonds of provision in favour of his daughters, and at the same time, made a will in relation to his moveables; which deeds, jointly taken, and in effect executed at the same time, and kept by him undelivered, made a total settlement of his estate, and shewed his firm intention that the lands should descend to his heirs of entail, and that the ladies, his daughters, should have nothing but their provisions. After the said Earl of Dundonald's death, it being discovered, That some of the lands contained in the tailzie had never been habily vested in the tailzier, but were still in hæreditate jacente of a remote predecessor, the Lady Strathmore, and Lady Katharine Cochran, his two daughters, insisted in a declarator, That, as heirs of line to the said remote predecessor, they were entitled to serve themselves in these lands that remained yet in his hæreditas jacens. This was opposed by the heir of tailzie, for whom it was pleaded, That they could not approbate and reprobate their father's will; if they accepted their bonds of provision they could not quarrel the tailzie; and if they quarrelled the tailzie, that they must renounce their provisions. Answered, The bonds are conceived simply, and absolutely without any condition; and the accepting thereof cannot cut them out of any other right, competent to them; That one cannot approbate and reprobate the same individual deed, which would be an inconsistency; but there is no inconsistency in one approbating a deed which the granter had power to make, and at the same time reprobating another deed which the granter had no power to make. Replied, Since the Earl of Dundonald granted these provisions to his daughters upon this very cause and consideration, That they were to have nothing else out of his estate; and since he burdened his heirs of tailzie with the payment thereof, upon this very cause and consideration, that they were to have the fund out of which these bonds were to be made effectual, it follows, That if the Ladies chuse to quarrel their father's settlement and obtain another provision out of his estate, the provisions must fall to the ground as sine causa. Found, That the bonds of provision and bond of tailzie are to be judged as of the same date, and as one total settlement, made by John Earl of Dundonald of his whole estate; and that the pursuers cannot have access to such of the lands contained in the said tailzie, as were in hæreditate jacente of their grandfather, and provided to descend to the heirs of line, without quarrelling or impugning of the settlement made by their said father; and that therefore they are not entitled to claim both their bonds of provision, and likewise their succession to the said lands, which were in hæreditate jacente, but that they are entitled to claim either the one or the other at their option.

Fol. Dic. v. 1. p. 427.