Scottish Court of Session Decisions

These are two actions in regard to the right to succeed as heir of entail to the two estates of Over — Kirkcudbright and Auchenchain, under deeds of entail executed by William Collow in the year 1779. The defender, Miss Grierson, has made up her title as heir of entail, and the pursuer challenges her right on the ground that he is the nearer heir. The defender objected to the pursuer's title to sue, on the ground that she is the true heir. This preliminary defence raised the question, which under the entail is the nearest heir?

The destination of the entail of Over-Kirkcud-bright is in these terms—viz., “to my grandson John Collow, and the heirs-male descending of his body; whom failing, to Gilbert Collow my grandson, and the heirs-male descending of his body; whom failing, to any other heir-male which shall be procreate betwixt my son Thomas Collow and Helen Grierson his spouse; and, in default of all these, to the heirs-female of the said John Collow, my said grandson; and failing of his heirs-female, to the heirs-female of the said Gilbert Collow; and in default of such, to the heirs-female of the male heirs to be procreated hereafter betwixt my son Thomas Collow and his said spouse; and failing of all such heirs male and female, to and in favours of William Collow, my grandson, and the heirs whomsoever, male or female, descending of his body; and in default of all such issue, to and in favours of William Collow, eldest son of the deceased Mr John Collow, late minister of the gospel at Penpont, my brother-german, and the heirs-male descending of his body; whom failing, to Thomas Collow, second son of the said Mr John Collow, and the heirs-male descending of his body; whom failing, to John Collow, third son of my said brother, and the heirs-male descending of his body; whom failing to James Collow, youngest son of my said brother-german, and the heirs-male descending of his body; whom failing, to Mr William Grierson, present minister of the gospel in Glencairn, and the heirs-male descending of his body (he is the lawful son of Jean Collow, my sister, deceased, and James Grierson her husband, also deceased); whom all failing, to any person or persons as shall be called and nominated to the succession of the lands and others aftermentioned, by a writing under my hand, at any time hereafter; and in case of no such nomination, to my own nearest of kindred, and their heirs and assignees and disponees whomsoever, absolutely and irredeemably.”

The pursuer contended that he was entitled to succeed as heir-female of John Collow, the grandson of the entailer, under the second branch of the destination. The defender conceded this, provided the destination was to be read as meaning heirs-female in general; but she maintained that the destination, rightly construed, meant heirs-female of the body of John Collow. If this were so, the pursuer could not succeed under this branch of the destination because John Collow left no issue.

The pursuer, however, contended, in the second place, that, assuming the estates to have now devolved on the entailer's “own nearest of kindred,” he was entitled to succeed, because he was the entailer's heir-at-law in heritage. But the defender contended, on the other hand, that she was the entailer's nearest of kindred, because she was nearest to him in blood. She is the entailer's grandniece, while the pursuer is his great great grandnephew.

The Auchenchain entail was somewhat different in its earlier branches and the first question did not arise under it; but it also contained an ultimate destination to the entailer's nearest of kindred, and therefore raised the second question which was raised in regard to the Over-Kirkcud-bright entail.

The Lord Ordinary (Kinloch) held (1) that heirs-female meant heirs-female of the body; and (2) that the pursuer was not the nearest of kindred to the entailer or one of his nearest of kindred. He therefore sustained the defence that the pursuer had no title to sue, and dismissed the action with expenses. In his note he observed—

Page: 251↓

1. The Lord Ordinary is of opinion that the destination to the heirs-female of John Collow must be held to be limited to heirs-female of the body.

The Lord Ordinary considers it to be settled that a destination to heirs-male, or heirs-female, expressed indefinitely, is to be limited to heirs male or female of the body, if it appears from the context of the deed that no other than this limited destination was intended by the granter. This was one of the points authoritatively fixed in the well-known Roxburgh case, Ker v. Innes, House of Lords, 20th June 1810; “Paton's Appeals,” v., 320. In that case it was found that a destination “to the eldest daughter of umquhile Harry, Lord Ker, without division, and their heirs-male” carried the estate to the daughters of Lord Ker successively, and the heirs-male of their body, not their heirs-male general.

It appears to the Lord Ordinary that the terms of the entail in the present case afford conclusive evidence that by the term “heirs-female of John Collow,” heirs-female of the body were alone intended.

The first circumstance to be attended to is, that the granter of the deed was intending to make a proper entail in favour of a series of heirs specifically called. Whatever may be said as to the last devolution on “my own nearest of kindred and their heirs and assignees and disponees whomsoever,” as to which also the present case raises a question, it is undoubted that down to this devolution a proper entail was intended in favour of the parties specifically set forth. There would otherwise be little or no meaning in the series of specific substitutions. It would be running contrary to this general intendment, to hold an intermediate destination to devolve the estate on heirs-female general; for this would be to introduce a destination of wholly indefinite comprehensiveness, carrying the estate to a variety possible individuals, unnamed and unknown, and making the after nominatim substitutions of scarcely appreciable value. If the heirs-female general required to be exhausted before the succession came to the next substitute, it would be somewhat difficult to predict when that event would happen.

In its usual application, a destination to heirs-female general is, in substance and effect, a destination to heirs whatsoever. If, as commonly happens, there is a prior destination to heirs-male, these must of course be exhausted before the destination to heirs-female takes effect. But so soon as it takes effect by that exhaustion, the destination is simply one to heirs whatsoever, whether male or female, All heirs, taking through a female, whether themselves male or female, are heirs-female in the eye of law. That a destination to heirs-female is simply a destination to heirs whatsoever, failing heirs-male, was decided in the well-known case of Bargany, in which, on that ground, the daughter of an eldest son (who was heir whatsoever) was found entitled to exclude the entailer's own daughter and her issue. Dalrymple v. Dalrymple, House of Lords, 27th March 1739; “Paton's Appeals,” i. 237. The legal rule is well and briefly expressed by Mr Bell (“Principles,” see. 1699). “Heirs-female applies to the heirs at law, male or female, failing heirs-male.”

Starting with a presumption in the present case against a destination so comprehensive as that of heirs-female general of John Collow, it is found that the entailer frames his deed on the specific plan of calling a certain series of substitute, with the heirs of their bodies respectively called in their place; in other words, a series of substitutes, followed each by his issue or descendants. His first destination is to his grandson, John Collow, “and the heirs-male descending of his body.” The next is to John's brother, Gilbert Collow, “and the heirs-male descending of his body.” The next is to “any other heir-male which shall be procreate betwixt my son, Thomas Collow and Helen Grierson.” There then intervenes the destination to the heirs-female of John Collow, now in question; and a similar destination to the heirs-female of Gilbert Collow, and of any other brother still to be procreated. The next destination is to the eldest brother of the same family, William Collow (to whom another estate, Auchenchain, was primarily given), and the heirs of his body, male or female. The deed then beam that “in default of all such issue,” the estate should go successively to the sons of a brother of the entailer, John by name, and the heirs-male of their body; and afterwards to William Grierson, a nephew of the entailer by a sister, and the heirs-male of his body. Failing these, the last devolution takes effect on the nominees of the entailer, “and in case of no such nomination, to my own nearest of kindred, their heirs and assignees and disponees whomsoever.”

The whole framework of the deed thus implies a succession of specific substitutes, and the heirs of their bodies—in other words, their issue or descendants. And with this accords the remarkable expression already quoted, which the estate to the family of the brother, “in default of all such issue:” evidently importing that it was descendants who were called under the previous destinations to heirs. The same meaning, though with less of strength, may be brought out of some after clauses, as where it is declared “that the eldest heir-female called to succeed in default of heirs-male, so often as such case happens, shall always succeed without division, and seclude all the rest of the issue-female throughout the whole course of succession; and also that the said John Collow, my grandson, and the hail heirs of tailzie before mentioned, as well male as female, and the descendants of their bodies, who shall happen to succeed to the foresaid lands and estate, shall be obliged to assume and constantly retain only my surname of Collow and the designation of Blackstoun,” &c. With this prevalent limitation to heirs of the body, the Lord Ordinary finds it difficult to suppose that the heirs-female of John Collow were intended to be anything else than heirs-female of the body—issue or descendants—as throughout the deed generally.

This being so, it seems to the Lord Ordinary a conclusive consideration that, except on the supposition of the heirs-female of John Collow being limited to heirs-female of the body, not only would the entailer's presumable intention be frustrated, but the whole of his destination of the estate be made a mass of inconsistencies and self-contradictions. The Lord Ordinary has already alluded to the improbability of a destination so indefinitely comprehensive as heirs-female general being interposed between the succession of one specific substitute and that of another. It is impossible to believe that the entailer intended to interrupt a specific and express series by a devolution on unnamed and unknown individuals of a general class. But, besides this, it is to be noticed that the substitutions posterior to the heirs-female of John Collow are not strangers in blood, but are all to members of the entailer's

Page: 252↓

family; and on the supposition of the destination being to heirs-female general, there would arise a confusion in the substitutions, altogether alien from any fair or even possible interpretation of the deed. At present, for instance, there stands a substitution “to the heirs-female of the said John Collow, my grandson, and failing of his heirs-female, to the heirs-female of the said Gilbert Collow (his brother), and in default of such, to the heirs-female of the male heirs to be procreated hereafter betwixt my said son Thomas Collow and his said spouse” (father and mother of John and Gilbert). But the destination to heirs-female of John Collow, if interpreted to be a destination to heirs-female general, would comprehend within it the heirs-female of his brothers, who would all be, in their order, John Collow's heirs-female as well. The one destination would thus comprehend the other, contrary to the plain intendment of the deed, which contemplates a series of substitutions, all different from and successive to each other. Not only so. The destination to the heirs-female of John Collow, if interpreted to mean heirs-female general, would, in default of there being any issue of John or Gilbert Collow, or their younger brothers, carry the estate to the daughter of William Collow, the eldest brother of all, who would in that case be the heir-female general of John Collow. But the effect of this would be to make the destination come into direct conflict with the next destination “to and in favour of William Collow, my grandson, and the heirs whomsoever, male or female, descending of his body.” Under this destination the sons and daughters of William Collow are not intended to come in till after William Collow himself. But according to the construction contended for by the pursuers, William Collow's daughter would come in before her father, as heir-female general of her uncle John. At least this result could only be avoided by William Collow being brought in as an heir-female general of John, which is absurd. And what, in that case, is to be made of the specific destination to William Collow, contained in the next clause of the deed?

So in regard to the other two families favoured by the deed after the failure of the issue of the marriage between Thomas Collow and Helen Grierson—viz., the family of John Collow, minister at Penpont, the entailer's brother, and of Jean Grierson his sister. The members of both these families were all more or less within the scope of heirs-female general of John Collow. To give effect to the destination to heirs-female of John Collow as being to heirs-female general, would, or might, create a similar confusion with that already noticed in regard to Thomas Collow's family. It would, or might, dislocate and disjoint the whole express substitutions of the members of these families, and bring in to the succession individuals expressly postponed, before those as expressly preferred. There is no stronger illustration of this than is afforded by the present claim of the pursuer. As heir-female of John Collow, the pupil is supposed to come in anterior to all the subsequent substitutions. Now the pupil derives his right as such from Mary Collow, the eldest daughter of John Collow, minister at Penpont, brother of the entailer. See what results: That the eldest daughter of this John Collow comes in before her brother William and the heirs-male of his body, and before her brother Thomas and the heirs-male of his body, and before her brothers John and James and the heirs-male of their bodies; and also before the Rev. William Grierson and the heirs-male of his body; in short, before every one of the ulterior most specific substitutions. The entailer is most anxious, in the case of these two last-mentioned families, to limit the succession to the sons and their male issue. Yet, upon the pursuer's hypothesis, a daughter of the Rev. John Collow and her heirs whatsoever come in and sweep them all away. It is ludicrously impossible that this should be the entailer's meaning.

On these considerations, the Lord Ordinary has arrived at the conclusion that the destination to heirs-female of John Collow must be taken as importing a destination to heirs-female of the body, and none other. The deed is in this way made clear and consistent, and accordant with the entailer's presumable intentions; but not otherwise. If the deed is so read, all claim by the pupil under this destination fails. There is no one possessed of the character of heir-female of the body of John Collow; for John Collow died without issue.

II. A second question, however, is raised between the parties. Assuming the destination to the heirs-female of John Collow to be read as the Lord Ordinary reads it, the estate has now, by the admission of the parties, devolved on the persons last called—viz., “my own nearest of kindred, and their heirs and assignees and disponees whatsoever, absolutely and irredeemably.” For the pursuer it is contended that this is simply a destination to the entailer's heir-at-law in heritage, which character, it is said, belongs to the pupil James Walter Ferrier Connell. For the defender it is contended, that the destination in question carries the estate to those who, at the time of the succession opening, are the entailer's nearest in blood, be they more or fewer; and as such the defender says she is entitled to the estate, and has accordingly served heir on that footing.

The pursuer's theory, that the destination in question carries the estate to the entailer's heir-at-law, recommends itself at first by its simplicity, and by a not unnatural impression that this is by no means unlikely to have been the intention of the entailer. But, on full consideration, the Lord Ordinary has come to the opinion that this theory could not be sanctioned consistently with giving effect to the words of the deed, and involves the substitution of a mere guess or surmise for the language actually employed. The words “nearest of kindred” have a defined and well-known meaning in Scottish law, signifying simply the nearest in blood, or those standing in the nearest degree of relationship. For, notwithstanding the ingenious philological argument of the pursuer, the Lord Ordinary cannot regard the phrase “nearest of kindred” as meaning anything else than the better known and more common phrase, “next of kin.” What the pursuer pleads is that the “nearest of kindred” must be considered as signifying “the nearest of kindred according to the rules of legal succession in heritage.” But besides that this implies the interpolation of words not used by the entailer, it is obvious to remark that there is no such thing as a difference in nearness of kin according as the subject is heritage or moveables. The nearest of kin are always the same—never vary. The heir is different according as the subject is the one or the other—that is to say, the relation who is to succeed is, or may be, different in the one case and in the other. But he does not by his succession in the least vary his nearness of relationship to the predecessor. When the entailer uses the words “nearest of kindred,” he uses

Page: 253↓

words which have in themselves a fixed and definite signification, altogether irrespective of the subject of succession. The words so used must be satisfied; and the Lord Ordinary has come to the conclusion that the cannot be so unless taken in their fixed and well-known meaning—that is, as signifying those who stand in the nearest degree of blood relationship to the entailer.

In giving to the words this construction, the Lord Ordinary considers them as meaning the next of kin to the entailer at the time the succession opens, by this devolution taking effect. Any other meaning—as, for instance, to hold them to signify the next of kin at the time of the entailer's death, and their heirs in heritage—would involve difficulties and absurdities inextricable. The case, it must be remembered, is not one of intestacy. In a case of intestacy, whether originally so left or supervening by after contingencies, it is the time of the predecessor's death which must be looked to, from the very nature of the case. But it is altogether different when it is not a case of intestacy, but of express destination. When this is to a person or persons called designatively, it is the natural as well as legal inference that the destination is to the person or persons who answer the description at the time of the destination taking effect. The “nearest of kindred” is just a designative destination, calling those who at the time can show themselves to be comprehended under that designation.

It was remarked that the “nearest of kindred,” considered as meaning the same with the “next of kin,” is a phrase which, in common use, indicates successors in moveables, not heritage. But there was nothing to prevent the entailer, if he so pleased, from calling to his succession, eo nomine, those who at the time might be entitled to succeed to his moveable estate. What effect this might have on the entail is not now the question. The question regards the destination, which was entirely in the entailer's power. There was nothing to prevent a devolution on a plurality of persons, all taking at once. Such plurality of disponees or substitutes is not uncommon in the case of settlements of landed estates. A familiar illustration arises in the destination to “children” in a marriage-contract, as contrasted with that to “heirs,” or “heirs and children;” the children in the former case being held all equally heirs of provision. On this point the only question is what the entailer intended—taking, as a Court must always do, the words employed by him as the evidence of his intention. The Lord Ordinary cannot answer this question except by giving the words employed what he thinks the only admissible signification.

It was pertinently asked by the defender, why, if the entailer merely meant his heir-at-law in heritage, he did not plainly say so? Why did he not simply say, “to my own heirs and assignees whomsoever?” He has not said so, but said something very different, and something which no stretch of construction can make harmonise with the assumed interpretation. If “nearest of kindred” simply means “heirs whatsoever”, the devolution then runs, “to my own heirs whatsoever, and their heirs and assignees and disponees whomsoever”—certainly a very awkward form of destination. But the Lord Ordinary does not proceed on any mere awkwardness of expression. His ground of judgment is that the entailer has not said what he ought to have said had he intended the devolution to be on his lawful heir in heritage; on the contrary, has said something which cannot fairly or legitimately be construed to mean only this.

It was argued for the pursuer that the phrase “nearest of kindred,” construed without reference to the laws of succession in heritage, would embrace relations by the mother's as well as father's side, the half-blood as well as the full-blood, and the like, contrary to all that is presumable regarding the entailer's intentions. And reference was made to a class of cases in regard to legacies, of which Scott v. Scott, House of Lords,10th May 1855, 2 M'Queen, 281, was presented as an example. But it appeared to the Lord Ordinary that these cases were inapplicable to the present. They were cases of intention as to a legacy, gathered not merely from the legal meaning of words, but from all the evidence supplied by the rest of the deed and the surrounding circumstances. The question was—In what sense, popular or legal, did the testator use the expression? In the present case there is nothing presented but the dry legal phrase “nearest of kindred” or “next of kin.” It is open to say that the phrase might have been construed by the context of the deed. But the context supplies no construction in this instance. The Lord ordinary can therefore give the phrase no other than its fixed legal meaning, which excludes affinity and half-blood. He gives the phrase the meaning which it has when applied to moveable succession; and he sees no inconsistency in the entailer declaring that those on whom his estate should ultimately devolve should be those known in moveable succession by the name of the next of kin. If the Lord Ordinary in this misinterpret the entailer, the entailer has himself to blame.

An alternative view was presented by the pursuer. It was admitted that the defender, Miss Grierson, was nearer in degree to the entailer than the pupil pursuer. She is the entailer's grand-niece, whilst the pupil is his great-great-grand-nephew. But it was contended that if Miss Grierson took as nearest of kin, the pupil was entitled to share with her, by virtue of the representation introduced by the Moveable Succession Act, 18 Vict., cap. 23. The Lord Ordinary could give no weight to this argument. The Moveable Succession Act makes no alteration in the meaning of the legal phrase “next of kin.” On the contrary, it maintains that meaning; and preserves to the next of kin, legally so called, the office of executor. Undoubtedly it gives a right representation to those who are not in law the next of kin, but successors of some who were. But this right of succession is made applicable, by the express terms of the Act, only “in case of intestate moveable succession.” There is none such involved here. The case is a case of heritage, and of heritage ruled by a deed. If the pupil pursuer cannot succeed as being legally “next of Kin,” he can as little do so through any representation introduced by the Moveable Succession Act.

The Lord Ordinary cannot fail to perceive that to sustain, as he does, the contention of the defender, Miss Grierson, will leave behind a number of questions arising out of this entail. It has been questioned, for instance, whether the clause excluding heirs-portioners, and preferring the eldest heir-female, applies in the case of devolution on the “nearest of kindred.” Another question has been started, whether the “nearest of kindred” are heirs of entail in such a sense as to apply the fetters of the entail to the heir immediately prior, or whether such heir did not stand towards them in the position of a fee-simple

Page: 254↓

proprietor, equally as in the case of a destination to heirs and assignees whatsoever. But these, and other questions which may be figured, are apart from the present discussion. However these questions may affect Miss Grierson, the pursuer has no concern with them, unless he establish that he is now the true heir to the estate. The only question now raised is, whether the pupil pursuer has a title to challenge Miss Grierson's service, either as being heir-female general of John Collow, or as being nearest of kindred to the entailer. The Lord Ordinary has come to the conclusion that this question must be decided unfavourably for the pursuer. W. P.

The pursuer reclaimed, and after an oral debate, the questions raised were ordered to be argued in writing.

Millar and Marshall, for the pursuer, argued on the first branch of the case—

“I. That the defender cannot tear from the words ‘heirs-female of John Collow’ in the entail of over-Kirkcudbright their technical and ordinary signification of ‘heirs-female general, without adducing cogent evidence of declaration plain’ by the entailer, or of ‘necessary implication’ from his language, that he intended to use the words in a different sense.

“II. That not only has the defender failed to adduce any evidence of such a declaration plain, or necessary implication; but the circumstances of the case—particularly looking to the state of the entailer's family in 1779, when he made the deed—lead to the conclusion that he did not mean that the heirs-female of his grandson John Collow should be restricted to the heirs-female of his body, but intended that the words should receive their wider and natural meaning, so as to admit to the succession, on the failure of his favoured grandsons and their male posterity, not only any daughters which these grandsons might have, but also his, the entailer's, own grand-daughters, or any daughters who might be born to himself during his life; and that, as the words could not in the case of John Callow's collateral heirs-female descending from the entailer himself be read in the limited sense contended for by the defender, they ought not, in the case of his collateral heirs-female descending from the entailer's brother, to receive any such limited signification.

“III. That their natural meaning cannot be torn from the words without either adding to the entail the words ‘of the body,’ which the entailer himself did not employ, or holding that branch of the destination as no longer operative, and as now mere surplusage, and that either method of dealing with the instrument would be a violation of the primary rules of construction laid down in many cases both by the Court of Session and by the House of Lords.

“IV. That the inconsistencies and absurdities which the defender says would follow from giving effect to the construction contended for by the pursuer, are not greater than occurred and were disregarded in the cases of Linplum, Urrard, and others; and, on the other hand, are less than would occur if effect were given to the defender's construction.”

The following authorities were cited:—Ersk., 3. 8. 48; Bell's Prin., sec. 1694, 1699; Skene's Reg. Maj., B. 1, ch. 258, B. 2, ch. 25, 34, and 41, B. 3, ch. 29; Skene de verb. sig.; Dalrymple v. Hope, 27th March 1739, Craigie and Stewart's App., p. 237; Blair v. Lyon, 19th June 1739, 5 Br. Supp. 663; Ewing v. Miller, 1st July 1747, M. 2308; Ker v. Innes, 13th Nov. 1810, F.C.; Craig 2, 16, 19; Sinclair v. Earl of Fife, 24th June 1766, M. 14944; Bell's Law Dict., voce “Destination;” Leny v. Leny, 28th June 1860, 22 D. 1272; Macgregor v. Gordon, 1st Dec. 1864, 3 Macp., 148; Tinnoch v. M'Lewman, 26th Nov. 1817, F.C.; Hay (of Linplum) v. Hay, 17th April 1789, M. 2315, and 5 Paton's App., 437; Braid v. Ralston, 20th Jan. 1860, 22 D. 438; Roxburgh Case, 5 Paton's App., 347; Duke of Hamilton v. Earl of Selkirk, 8th Jan. 1740, M. 5615; Sandford on Entail, p. 72 and 91; Baillie v. Tennant, 16th March 1770, M. 14941; Sutties, 19th Jan. 1809, F.C.; Stewart v. Stewart, 8th April, 1824, 2 Sh. App., 149; Campbell v. Campbell, 28th Nov. 1770, M. 14949; Leitch v. Leitch's Trustees, 3 W. and S. App., 366; Farquhar, 3d Feb. 1842, 4 D. 600.

On the second branch of the case they argued—By the words “nearest of kindred” the entailer meant the person or persons who, at the date of the succession opening, should be of his blood, and so nearly related to him in line or degree as to be entitled to succeed to his heritage ab intestato. It must be kept in view (1) that the subject-matter in dispute is a landed estate; (2) that the deed to be interpreted is a mortis causa settlement; and (3) that that deed has been found (4 Macp., 465) to be a subsisting deed of entail, and that the destination to the “nearest of kindred” is a part of the tailzied destination. The term “nearest of kindred” is not synonymous with “next of kin” either in its technical or literal sense. It is not a nomen juris, and must therefore be construed. It does not mean the nearest in degree absolutely. Reading the deed secundum subjectam materiem, the nearest in line are preferred to the nearest in degree. The pursuer's construction of the phrase is consistent with a tailzied destination, while the defender's is not. The pursuer's son is jure repraesentationis, the entailer's nearest of kindred, and also the representative of his next of kin as at the date of his death. But even assuming that the destination is to the next of kin at the time of the succession opening, the pursuer's son is entitled to share the succession with the defender, and under the Intestacy Act, 18 Vict., c. 23, he represents a person equally near in degree to the person whom the defender represents. The following were the pursuer's authorities on this part of the case:—Ersk., 1, 8, 5; 3, 8, 2, and 11; 3. 9. 2.; Book of Leviticus, chap. 18; Act 1555, c. 35; Bell's Prin., sec. 1650, 1694; Bankton, 3, 4, 28; Reg. Maj., B. 2, ch. 33; Craig, 2, 13, 21; 2, 17, 21; Innes v. Kerr, Nov. 13, 1810, F.C.; Russell's Treatise on Conveyancing, p. 254; Leny v. Leny, ut supra; Gordon v. Gordon's Trustees, March 2, 1866, 4 Macp. 507; Wharrie, M. 5299; Brown, M. 2318; Scott v. Scott, May 10, 1855, 2 M'Q. 281; More's Notes, vol. i. p. 628; Bowie, Feb. 23, 1809. F.C.; John Voet, 28, 5, 19, and 20; 36, 1, 25.