A destination being to the granter in life-rent only, and failing him by decease, to another person in fee; the latter understood to be disponee or institute, and not an heir of entail.
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Henry Wellwood executed a bond of tailzie of his lands, containing a procuratory of resignation, in favour “of himself in liferent, for his liferent use only; and failing of him by decease, to Robert Wellwood his nephew, and the heirs male of his body; whom failing, to the heirs female of Robert's body,” &c. The usual prohibitory, irritant, and resolutive clauses respecting selling the estate, or contracting debt, which the bond contained, were directed against the heirs whether general or of tailzie before mentioned,” without naming Robert Wellwood, or distinguishing him as disponee or institute. But in several places of the deed, the expression runs thus: “the said Robert Wellwood my nephew, and the other heirs of tailzie before mentioned.”
On the death of Henry Wellwood, Robert made up his titles to the estate, by executing the procuratory of resignation. He afterwards having an intention of selling the lands, instituted a declaratory action against the heirs of tailzie, for having it found, “That being nominatim disponee, institute, and fiar, in the said estate, he was not an heir of entail, and therefore not liable to any of the conditions, provisions, limitations, or restrictions in the said deed of entail.” And in support of this action he
Pleaded: By the conception of this bond, the pursuer became fiar; the only right remaining in Henry Wellwood being a liferent by reservation. It is true, that a destination to a father in liferent, and to his children nascituri in fee, renders the father a constructive or fiduciary fiar. But this is ex necessitate, because a fee cannot be in pendente, whereas, in the present case, there was no such necessity, the fee being vested in the pursuer as nominatim disponee, to whom the other persons named were heirs of tailzie and provision.
But in consequence of that strictness of interpretation which is ever applicable to entails, the pursuer, as institute or disponee, ought not to be included under those prohibitions and irritancies, which are directed against “heirs of entail.”
This limited construction is established by the cases of Leslie, 24th July 1752*, and of Balfour 14th February 1758, No. 58. p. 4406. But in that of Edmonstone, 24th November 1769, No. 59. p. 4409. the very point now maintained was so determined by the House of Lords; a judgment which has been steadily followed as a precedent, particularly in the case of Menzies, 1785, No. 53. p. 15436. With regard to the phrase, “other heirs of tailzie,” that happens to occur in some parts of the deed, and seems to refer to Robert as in that class, it is to be observed, that the law, explained by the case of Edmonstone, requires the technical and appropriated expression in its proper place; and it is not enough that such words, as if casually occurring, may be found in other parts of the deed.
Answered : The entailer's purpose of restraining the institute, not less than the substitutes, is implied in the very idea of an entail, calculated, as this was, for preserving this estate among his kindred. It is true, however, that entails are to be strictly construed; and it is admitted, that the judgment in the last resort in the case of Edmonstone is an established precedent.
But that case was essentially different from the present. There the granter disponed his estate directly “to his eldest son, and his heirs male; whom failing, to his second son,” &c.; and of course the fee was immediately vested in the eldest son, who, by infeftment as institute or disponee, could make up a complete feudal right to the lands. Here, though, ex figura verborum, the granter resigned in favour of himself in liferent, for his liferent use only, yet, instead of vesting the fee in the pursuer, he is only called to the succession thus: “Failing of me by decease, to Robert Wellwood,” &c. Hence he could not be considered as an institute or disponee, but as an heir of entail; and in order to make up a proper title to the estate, he ought to have been served heir of entail and of provision to the granter. And if before the entailer's death Robert had died, his son must have made up a title, not as heir to him under the entail, but as heir of entail to the granter.
The Lord Ordinary reported the cause on informations.
Some of the Judges thought that there was no immediate disposition of the fee, the conveyance being to the granter in liferent only; and though to Robert in fee, yet not till after the granter's decease; so that, as a fee cannot be in pendente, the granter was fiduciary fiar, and Robert heir of entail.
But the opinion of the majority was, that the words. “failing of me by decease,” referred to the possession or enjoyment of the estate, and not to the fee; and therefore that Robert was to be considered as nominatim disponee or institute.
The Lords repelled the defence.
Reporter, Lord Justice Clerk.Act. Maconochie.Alt. Wight.Clerk, Home.
Fac. Coll. No. 167. P. 339.
