Scottish Court of Session Decisions

Subject_1 TAILZIE.
Subject_2 SECT. I.

Nature and Effect.

Mrs Dalrymple of Orangefield, and James Dalrymple, her eldest Son,
v.
The Countess of Glencairn, and Others

Date: 1 March 1783
Case No. No. 50.

Entail where the limitations affected only the nominatim substitutes.

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By the terms of the entail executed by Governor Macrae, of his estates in the county of Ayr, the limitations, which were guarded by the usual prohibitory, irritant, and resolutive clauses, affected only the nominatim subtitutes, whilst their descendants who were called after them were laid under no restrictions.

Mrs. Macrae Macguire, the wife of Mr. Charles Darlymple, succeeded in virtue of this entail, as a nominatim substitute, to the estate of Orangefield, and being desirous to dispose of it, she granted to her eldest son and heir, James Dalrymple, a disposition, referring to Governor Macrae’s settlement.

Mr. James Dalrymple then entered into a minute of sale concerning the estate, the validity of which came to be tried, in a declaratory action, instituted against the other heirs of entail by Mrs. Dalrymple and her son; for whom it was

Pleaded: By directing the prohibitions against the nominatim substitutes alone, and leaving to their heirs the absolute and unlimited property of this estate, Governor Macrae’s evident purpose was merely to prevent the former, in the event of their having no issue of their own, from alienating the lands in favour of a stranger. In disposing therefore to her eldest son and her, Mrs. Dalrymple, instead of counteracting, has literally fulfilled the intention of the tailzier. Even in the case of an entail, guarded with the necessary clauses against the whole persons called to the succession, the power of an heir in possession, to denude of all or part of the estate in favour of his apparent heir, has been long acknowledged. A fortiori, such a power must be competent in the present instance.

Answered: By this entail, which is secured by the requisites prescribed by statute 1685, it is, in words the most clear and unambiguous, provided, that no deed by the nominatim substitute shall disappoint the order of succession therein established. Hence, as the transaction in dispute has for its avowed object a departure from these regulations, it must not only be destitute of effect, but must also found the defenders in an action of irritancy against Mrs. Dalrymple, in whose fofeiture, it is to be remarked, by the tenor of this entail, that of her descendants is unavoidably included.

Neither is it of importance, that the children of Mrs. Dalrymple, by the singular construction of this settlement, will take the estate upon her death as a fee simple, it being a possible case, that before that period, these children, however numerous may be extinct; an event by which the succession would devolve on the other substitutes, unaffected by her deeds. Nor can the permission given in ordinary entails, of making settlements in favour of apparent heirs, which can be attended with no disappointment of the entailer’s views, be extended to warrant a transaction confessedly calculated to derange the order of succession proposed in this case by Governor Macrae.

The Court were of opinion, that this bargain, if carried into execution by Mrs. Dalrymple, would infer a contravention of the entail; and therefore assoilzied the defenders

Lord Reporter, Stonefield. Act. Ilay Campbell, R. Dundas. Alt. George Ferguson, John Erskine. Clerk, Home. Fac. Coll. No. 103. p. 163.

*** This case was appealed. The House of Lords, (17th June, 1784) Ordered and Adjudged, That the appeal be dismissed, and the interlocutors therein complained of affirmed.