The Viscount of Arbuthnot, v. The Honourable John, &c Arbuthnots, and their Tutor ad litem.
Date: 4 July 1792 Case No. No 12.
Whether one succeeding to a large personal estate, be obliged to fulfil his predecessor's will, so as to expose him to forfeiture of a valuable landed property?
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In 1733, John, Viscount of Arbuthnot, executed as deed of entail, in the form of a disposition, respecting the lands of Arbuthnot Failing the heirs-male of his own body, his uncle, and nearest male relation, John Arbuthnot of Fordoun, and his heirs-male, were called to the succession.
After these, were called the entailer's other heirs-male, and lastly his heirs-female; the eldest always succeeding without division.
The deed contained the usual prohibitory, irritant, and resolutive clauses; and, in particular, it directed, under an irritancy, that the limitations, conditions, and provisions, should be inserted in all the subsequent investitures. But it had neither a procuratory of resignation, not a precept of sasine. Being put into the hands of a friend of the family, it remained with him till 1757, when the entailer died.
Mr Arbuthnot of Fordoun, the institute in the entail, having died some years before, the succession opened to his eldest son, the late Viscount of Arbuthnot, who, in 1759, neglecting the entail, made up titles, as heir to his cousin, under the standing investitures, which were subject to no limitation. Before his succession to the estate and honours of Arbuthnot, he had become bound, by his marriage contract, to settle his paternal estate of Fordoun upon the heirs-male of the marriage.
In 1777 the late Viscount executed a new entail of all his lands, including those of Arbuthnot and Fordoun. The prohibitory, irritant, and resolutive clauses were the same with those in the deed 1733; and the order of succession differed only in this, that upon the failure of heirs-male, his Lordship called ‘his own neatest heirs and assignees whatsoever;’ so that the eldest heirs-female, instead of having, in their order, a tailzied succession, had nothing but a spes successionis along with the other heirs portioners. The heirs of entail were also specially required, under an irritancy, to hold the estates under this entail, and no other title.
The entail 1777 was duly recorded, In 1789 the late Viscount died; and his eldest son, the present Viscount, having expede a general service under the entail 1733, brought an action for setting aside the subsequent one.
So far as it related to the lands of Arbuthnot, the action was founded on the prior entail; which, though merely personal, and unaccompanied with procuratory and precept, was binding on the late Viscount, as representing the entailer. With regard to the lands of Fordoun, it was contended, that the late Viscount, by his marriage-contract, was barred from laying his eldest son, and the heir of the marriage, under any limitations.
The defenders, who were the present Viscount's children, insisted that the entail of 1733 was cut off by the negative prescription. That, however, was evidently founded on a mistake, as the prescription could not run till the entailer's death in 1757. They farther contended, that, notwithstanding the marriage-contract, their grandfather was at liberty to lay his eldest son, and the other heirs of the marriage, under any reasonable limitations; and that the entail which he had executed, and which was merely intended to perpetuate the representation of his family, was of that fort.
Besides, and what seemed to supersede all farther argument, it was stated, that the pursuer had taken up his father's moveable succession to the amount of L. 30,000; so that he was barred from challenging the deeds in question.
The Lords “Repelled the objection to the deed 1733; but found, that the pursuer, as representing his father, is barred from challenging the deed of entail executed by him.”
In a reclaiming petition, the pursuer
Pleaded: Where a person executes a settlement, which cannot be immediately effectual, from his want of powers, the grantee, if not liable to the same inability, is in general bound to fulfil the testator's purpose, upon his availing himself of those parts of the settlement which are favourable to him. But where the settlement is not merely impracticable from a defect of power in the testator, but the heir is required to do an illegal act, or one which would expose him to a forfeiture, this, like a condition which is naturally or morally impossible, ought to be disregarded, and the heir permitted to take under the will, without any obligation to perform what has been required from him. The present case is to be viewed nearly in the same light, as if the testator, along with his own lands, had entailed those which belonged to a third party, where the heir of entail, though obliged to fulfil the testator's injunctions as to the former, might warrantably omit taking any steps as to the latter; Erskine, 3. 3. 85.
Answered: If the pursuer had made up his titles under the entail executed by his father, a very few years would have invalidated the former one; and therefore, if he is under any embarrassment, it is one imputable to himself only. But the subsistence of that deed, though it may endanger the pursuer's right, does not preclude the other, which is effectual, till it is brought under challenge, and may, by the force of prescription, be rendered unchangeable. Besides, the pursuer must be barred from challenging the latter deed, so far as it lays him personally under farther limitations, the idea of setting aside a deed in toto, because in one respect it cannot be effectual, being inadmissible; and, at any rate, if the pursuer were to be indulged in voiding the entail 1777, so far as it is inconsistent with the former one, he ought to be compelled, by employing the moveable funds which belonged to the late Viscount, in the purchase of lands, subject to the same restraints which are prescribed in the deed executed by him, to fulfil, so far as it is possible, his father's intentions.
After advising the reclaiming petition, with answers,
The Lords “Sustained the reasons of reduction of the disposition and deed of tailzie executed by the deceased John, late Viscount of Arbuthnot, quoad the estate of Arbuthnot; but assoilzied as to the estate of Fordoun and others.” (See Tailzie.)
Ordinary, Lord Eskgrove.Act. Dean of Faculty, Dickson.Alt. Wight.Clerk, Gordon.
Fac. Col. No 220. p. 462.
A case, Miln against Gourlies, 21st December 1727, not collected, was decided in direct opposition to Anderson against Bruce, No 3. p. 607.
