Thomas Hamilton of Fala v. The Viscountess of Oxfurd
Date: 16 February 1757 Case No. No. 37.
If an heir of entail in possession is entitled to cut trees, though the value of them is offered by the next heir?
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Upon some differences betwixt the Viscountess of Oxfurd, then eighty years of age, and Thomas Hamilton of Fala, next heir of entail to her Ladyship in the estate of Oxfurd, she advertised a sale of all the planted timber round the mansion-house, and upon the estate.
Mr. Hamilton presented a bill of suspension. Her Ladyship did not allege the plantations lessened the yearly value of the ground.
She did not allege she had any dislike, in point of taste, to the plantations.
She did not allege she was to be a gainer by forcing on the sale; for Mr. Hamilton made offer of the price of the timber, provided she would allow it to remain uncut.
Pleaded for the Viscountess: She was not debarred by the entail from cutting the plantations; and as entails admit of no latitude of interpretation, she was at liberty to do whatever she was not debarred from doing.
Answered for Mr. Hamilton: A distinction is to be made betwixt the end of a tailzie, and the means of supporting it. The end is, the preservation of a family; the means are, prohibitions on the heir to alienate, and bars upon the creditors to attach: The end is the object of favour in law; the other the object of disfavour: The latter, for that reason, has always had a literal interpretation; but, for the same reason, the former should have a liberal one.
Another distinction is to be made betwixt the interest of tenants in tail competing with the interests of after-heirs. In the first case, the entail is strictly interpreted, so as to be beneficial to the creditor; in the other case, it is fairly and benignly interpreted, so as to be beneficial to the after-heir, and to the will of the entailer. Thus tailzies, without being recorded, have frequently been found good against an heir of entail in possession, though not against creditors; and a prohibition to alter the entail, will bar the tenant in tail from altering it, though it will not bar a creditor from attaching it.
And therefore, when a tenant in tail does a thing to hurt the after-heir, from a desire of disappointing the entail, there the law, in favour to the will of the entailer, ought to interpose.
“The Lords refused the bill of suspension.”
For Suspender, J. Dalrymple, And. Pringle.Alt. J. Craigie, Lockhart, Ferguson.
Fac. Coll. No. 13. p. 22.
