Sir Peter Halket of Pitfirran and his Curator ad litem, v. Wedderburn of St Germain's.
Date: 16 February 1762 Case No. No. 41.
Where the eldest son of a tenant in tail happens to be an idiot, can his father set him aside?
Click here to view a pdf copy of this documet : PDF Copy
In the entail of Pitfirran, the heirs of entail are laid under no prohibition to alienate or contract debt. They are only prohibited to alter the order of succession under the following irritancy, “That the contravener, for himself and the heirs of his body, shall forfeit all right to the estate, which shall devolve upon the next substitute.”
Sir Peter Halket of Pitfirran, having the misfortune of an idiot for his eldest son, settled the estate upon his second son, and the subsequent heirs called to the succession by the deed of entail. The disponee survived his father, but died young, without issue. After his death, a process was brought, in name of, the idiot, for reducing the said settlement, which barred him from the succession; and the deed was accordingly reduced, by the narrowest plurality.
To clear the reasons that occur against this judgment, it must be premised, that, in our entails, every tenant in tail, being proprietor, is empowered qua such to exercise every act of property; and that the restraints he is under proceed not from any limitation in his right of property, but from the personal prohibitions contained in the entail, to which he ought to submit, because he accepted the sue- cession under that condition; which holds more especially in the present entail, authorising, in express terms, every act of property, except that of altering the order of succession.
Keeping this in view, the question is, Whether Sir Peter Halket, proprietor of the estate, was barred, by the prohibition above-mentioned, from exheridating his eldest son, upon the account of idiocy? And that he was not barred, may appear from, the following reason: The entailer, prohibiting an alteration in the order of succession, had only in view to secure the estate to the heirs of entail named by him, It did not occur to him that one of these heirs might be an out-law, might be a professed Papist, might be forfeited for high treason, or might be an idiot. These cases are not provided for, because they were not foreseen; and therefore they are left to be governed by reason and equity, which dictate that the solid way of determining this point is to consider what would have been the will of the entailer had he foreseen these events. Of this there can be little doubt; for he never could intend that any person should succeed who would put an end to the entail, and convey the estate to the Crown as escheat. Neither could he intend that a professed Papist should succeed him, who is barred by express statute. Neither is it presumable that he could intend his estate for an idiot, incapable of enjoying it. There is therefore no good foundation for voiding Sir Peter’s settlement; for, supposing it contrary to the words of the prohibition, it is evidently conformable to its spirit and intendment.
