Scottish Court of Session Decisions

By the 4th section of the Aberdeen Act it is provided that, on any younger child succeeding to the entailed estate, the provision granted to him or her, in so far as not previously paid, shall be extinguished for ever, and shall never be set up as a debt against any succeeding heir. Of course, if the petitioner had in ordinary circumstances succeeded to this estate while that provision subsisted as a provision burdening the rents of the estate, it would have been extinguished under this clause, and there would have been no difficulty in arranging the matter now before us. That being extinguished could not have been computed as a deduction from the fund which Stewart Brodie was entitled to settle as a provision. The peculiarity arises from the fact, that Stewart Brodie, the last heir, availed himself of the powers contained in the 21st section of 11 and 12 Vict., c. 36, and the 7th section of 16 and 17 Vict., c. 94. The first of these Acts enables an heir of entail in possession of an entailed estate, when there is a provision affecting the rents of the estate under the Aberdeen Act, to make the amount of that provision a charge on the fee of the estate by executing a bond and disposition in security with all the usual clauses. But it was not by that Act expressly said whether he could grant such a bond to any one but the person in right of the provision. That difficulty is removed by the later statute, and there is no doubt now that the heir in possession may grant a bond and disposition in security in favour of any one who will advance the money. Accordingly Stewart Brodie did grant a bond and disposition in security for £2300 in favour of a stranger. That stranger advanced the money, and received a bond and disposition on which he was infeft. And accordingly that burden now subsists against the fee of the estate, as a permanent burden in all human probability, because it is not the interest of an heir of entail to pay off burdens on his entailed estate. Stewart Brodie, however, having availed himself of his right, was enabled to raise a sum of £2300, but he was bound to apply it in a particular manner, and he applied it in paying off the provision of his younger brother. Now, it is just because that is paid off and extinguished that it does not fall under the 4th section of the Aberdeen Act and become lost. If it were not paid off, it would become extinguished by his succession to the estate. Therefore it is impossible to hold that it is an existing provision.

But it is said, that still it subsists as a burden, and has not been extinguished in this sense of not being a burden on the heirs of entail. It is contended that it is a burden, but not so serious as if it were in its former shape; that, though in the form of a bond and disposition in security, it still retains its character of a provision. That cannot be maintained. I am not moved by the consideration that, if this is not to be considered a provision, and provisions to the full extent of three years' rents of the estate may be made by each successive heir as he comes into possession only on the condition that he makes the previous provision a burden on the estate, the result will be to eat up the fee in the end. To a certain extent that will follow. But, on the other hand, an equally absurd result is reached by the opposite view. For suppose that each provision that is constituted into a burden is to be taken into consideration in fixing the free rents, the result will be that, after a certain number of generations, when the provisions created have been made burdens, there will be such an amount of burdens to be deducted as will extinguish that altogether, and so nullify the Aberdeen Act. One result is as absurd as the other, and the question is, Which is most opposed to the policy of the Entail Acts? Now, I cannot read the Acts we are dealing with without seeing that they do not deal with entails as favourites of the law; and if the effect of our judgment be to bring entails to an end as regards particular estates, I do not think that is against the policy of these Acts, but rather in harmony with it. It does not seem in harmony with the policy of these Acts to keep up an entail in all its rigour, and prevent an heir in possession from making provisions for his younger children. While willing, therefore, to admit these startling results, I have no hesitation in adopting one as in harmony with the law, and rejecting the other. Therefore, the position of the petitioner originally is correct, that he is entitled to deduct the interest of the bond and disposition in security, but not the capital of that sum, in estimating the net rental upon which the provisions to the widow and children of Stewart Brodie are proposed to be calculated.

Lord Curriehill—This a question of importance to heirs of entail. The question is as to the amount of deductions to be made in order to fix the amount of certain provisions by an heir of entail. The Act of Parliament is explicit. You are to deduct the amount of the interest of all burdens affecting the estate, and, if there are provisions to younger children, you are to deduct the amount of them. The question is, How these are to be treated in this particular case? The interest on heritable bonds and dispositions in security must be deducted. They are burdens affecting the fee and rents of the estate, and therefore, in conformity with the express direction in this Act, the interest must be deducted. The question is, Whether the capital sum of former provisions is to be deducted? It is impossible to hold that they are to be deducted, for they are discharged. Not only was this bond and disposition in security granted for the capital sums to pay them off, but they have been paid off, and there is a formal discharge. How the Court are to deduct the capital sum of a debt which has been paid off and discharged, I cannot conjecture.

Lord Deas—I agree in holding that under these statutes the former provisions must be held to be paid off and converted into heritable debts affecting the fee of the estate, the interest of which alone is to be taken into consideration in calculating the amount of the provisions now to be granted.

Lord Ardmillan concurred.