Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Russels
v.
Russel

Date: 30 June 1763

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In this case the Lords would not determine the general point, that where an estate is entailed to several substitutes, whom failing, to the maker of the entail, his heirs and assignees, or, as it happened in this case, to the third son of the entailer, and his heirs and assignees whatsomever,—such heirs have not the benefit of the prohibitive and irritant clauses of the entail; and several of the Lords, particularly Lord Coalston, said, that the decision in the case of Cassilis proceeded upon specialties, such as that it was plainly in the view of the parties there to preserve the succession in one person, who was to bear the name and arms of the family, and not to have it divided among many heirs-portioners ; and, therefore, not to give the heir in possession a power of preventing the estate from devolving to heirs-female, was perverting the limitations intended for the preservation of the family, to the destruction of it; and, besides, there were clauses in that entail which showed it to be the intention of the tailyier that such heirs only should have the benefit of the limitations who were themselves subjected to them. The Lords, therefore, decided the cause upon another point. It was, however, said, by the President, that the general point was determined by the House of Lords. But, with great submission to that House, I cannot discover upon what principle of law a man should not have it in his power to secure an estate to his own heirs at law, or to the heirs at law of any other for whom he has an affection. In this case, if William Russel, the third son, had been alive, it was hardly disputed but that the prior substitute would be under fetters to him; and what difference does it make that he was dead and his daughters now sueing for the execution of the entail, who are as much provided for by the entail as William, their father?