An entail found not to be revoked by a trustdeed, executed a few days after it, by which the granter disponed the whole heritable and moveable subjects, heirship-moveables included, of whatever denomination, which should belong to him at his death; and “particularly, without prejudice of the foresaid generality,” the heritable subjects therein enumerated; neither the entail, nor the lands to which it related, being mentioned in the trustdeed.
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On the 14th February 1793, John Maxwell executed a strict entail of the barony of Fingalton, in favour of Mrs Margaret Mitchell, and others.
On the 25th of the same month he executed a deed, disponing to trustees, “the whole heritable and moveable subjects, heirship-moveables included, of whatever denomination,” which should belong to him at his death; “and particularly, without prejudice of the foresaid generality,” the subjects therein mentioned, which consisted chiefly of houses, and feu-duties. The trustees were directed, after paying his debts and annuities, to dispone the residue to the same persons who, by the entail, were to succeed to Fingalton. The trustdeed, however, neither mentioned these lands nor the entail, and the free residue was not to be entailed.
The trust-deed contained procuratory and precept as to the subjects enumerated in it. After the testing clause, it was added, ‘ before subscription,’ that Mr Maxwell's share in the Tontine Society and buildings in Glasgow, was meant to be conveyed by it; and this was his only heritable property, except Fingalton, which was not specially mentioned.
Upon Mr Maxwell's death, it turned out that his property, exclusive of Fingalton, was insufficient to pay the debts and annuities; and Walter Logan, the only accepting trustee, brought an action against the heir by the entail of Fingalton, to have it declared, that that estate was comprehended under the trust-deed; contending, that the entail being superseded by the second deed, there was no room for argument as to the intention of the granter; and that besides, it might reasonably be presumed, that by the time the second deed was executed, he had perceived the necessity of a total sale of his property.
Answered; The general clause in the trust-deed is restricted by the subsequent enumeration of particulars of less value than Fingalton; Erskine, b. 3. t. 4. § 9. If Mr Maxwell had considered the trust-deed to include his whole estate, he would not have thought it necessary to mention his share in the Tontine at the close of it. And if he had not meant the entail, so lately executed by him, to subsist, he would have expressly revoked it. House of Lords, 21st May 1783, Sir Thomas Dundas, voce Tailzie.
The Lord Ordinary reported the cause on informations.
The Court were unanimously of opinion, that the entail was not meant to be revoked by the trust-deed, nor included under it; and on that ground gave judgment in favour of the defenders.
Lord Ordinary, Methven.Act. Ar. Campbell.Alt. Ar. Campbell, jun.Clerk, Sinclair
Fac. Col. No 51. p. 116.
