Scottish Court of Session Decisions

The entail of the estate of Durris contained the following provision:—“As likewise it shall be lawful to the said heirs of tailzie to provide their wives to competent liferent portions, and their children to reasonable and competent portions, as becomes their quality, and as the said estate may conveniently suffer and bear.”

In 1750, Charles, Earl of Peterborough, the heir in possession, granted a bond of provision for £1000, in favour of Lady Mary Mordaunt, his second daughter, payable at his death. This was a provision within the power of the grantee, in all respects, under the clause above quoted. The Earl died in 1779, and was succeeded by his son, Charles Henry, Earl of Peterborough, who, for many years, failed to pay either principal or interest of the bond. In 1793, Lady Mary obtained decree of constitution against him, and, after using inhibition, raised a summons of adjudication. The debt was then assigned to Hogg of Raemoir, to whom, in 1795, Earl Charles Henry granted a bond of corroboration for £1757, being the principal sum and the arrears of interest since his father's death. After various assignations, this bond was onerously acquired by the late Alexander, Duke of Gordon, and, on the death of his Grace, became vested in his trustees. The interest on the bond, subsequent to 1795, had been regularly paid.

The entailed estate of Durris being sold under an Act of Parliament, it became necessary to ascertain what debts affected the price, as the surrogate of the estate. Her Grace Charlotte, Duchess-Dowager of Richmond, was now the heir of entail, and, along with her parliamentary trustees, she objected that, of the above bond for £1757, there was only £1000 which could affect the price of the estate, in respect that the balance of £757 consisted of arrears of interest, accruing prior to 1795, whilst Earl Charles Henry was heir in possession, and which formed a debt against him and his representatives, but not a debt against the estate. The trustees of the Duke of Gordon answered that the bond for £1000, being granted under reserved powers in the entail, was in all respects tantamount to an entailer's debt; that an entailed estate was adjudgeable both for the interest and principal of an entailer's debt, and that the estate of Durris would have been equally adjudgeable for principal and interest of this bond: and accordingly Lady Mary Mordaunt was in the course of leading an adjudication, when the bond for £1757 was granted, since which date the interest had been regularly paid.

The Court ordered minutes of debate, on considering which the following opinions were delivered:—