Scottish Court of Session Decisions

The pursuers in this action were the trustees of the children of the marriage between the late Earl of Kinnoull and the Dowager-Countess of Kinnoull, and the defender was the Honourable Arthur Drummond of Cromlix, heir of entail in possession of the entailed estates of Innerpeffray and Cromlix, in the county of Perth. The object of the action was to enforce payment of a sum of £6360, being the shares of a sum due to the children of the marriage under a bond of provision executed by the Earl, on 12th October 1841, in favour of certain trustees, to give effect to the purposes of a marriage contract previously executed. That contract contained certain provisions in favour of children; but, of the same date, the Earl executed a bond and disposition in security, whereby, in security of the sums so provided, he made over to his trustees the entailed estates of Innerpeffray and Cromlix. Doubts afterwards arose as to the validity of the provision in question, whereupon the Earl granted the bond of provision above mentioned, binding the succeeding heir of entail. There were nine children of the marriage between the Earl and Countess of Kinnoull. The second son was Captain the Hon. Robert Drummond, who attained majority on 22d July 1852. In March 1853 the Earl executed a deed of denuding in favour of this son, and he afterwards was duly vested with the estates. The deed of denuding expressly refers to the bond of provision, and bears that it had been agreed upon between the Earl and Robert Drummond that the bond should form a valid charge against the entailed estates. Robert Drummond, who was never married, died on 1st October 1855, when the succession opened to his immediate younger brother, who completed his title as nearest lawful heir of tailzie and provision to his deceased brother. By the deed of entail under which the

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.estates of Innerpeffray and Cromlix are held, it is provided that when the same person should happen to succeed both to the estate of Dupplin and the estates of Innerpeffray and Cromlix, and when he had a second or younger son, he should denude himself of the Innerpeffray and Cromlix estates in favour of such son. And it is provided by the said deed of entail that when both the Dupplin and Cromlix estates shall fall and be settled upon one person, it “shall be lawful to the second or younger sons decending of the person succeeding to both of the said estates, when majors, to obtain themselves served, retoured, and infeft in my estate (Cromlix estate) as heir of provision thereto, and the person succeeding to both the said estates his right, retour, and infeftment of my estate shall become void and extinct as if it had not been.” The pursuers founded on the Act 5th George IV., c. 87, as giving power to execute the bond of provision in question, and pleaded that the defenders had no title to dispute the validity of the bond of provision, in respect of the terms of the deed of denuding, and of the infeftment following thereon, and subsequent titles. The defenders maintained that the bond of provision was ineffectual to create a charge or obligation against the defender or other heirs of entail in virtue of the clause of devolution contained in the entail, and that the statute did not confer the power alleged by the pursuers. The Lord Ordinary ( Mure) repelled the defence. His Lordship added the following

Note.—Had a question similar to that on which parties are here at issue been raised under a deed of entail which, irrespective of the Act 5th Geo. IV, cap. 87, authorised the heirs in possession of the estate to make provisions for their wives and younger children, but contained a declaration that the estate should, in certain events, devolve upon another heir, the Lord Ordinary is disposed to think, upon the authority of the rules which have been laid down as to the powers of heirs of entail in possession, and applied in the House of Lords in the case of Morton v. Eglinton, 8th July 1847 ( 6 S. Bell, p. 136), and in this Court in the earlier case of the Earl of Oassillis in November 1742 (Craigie and Stuart's Appeals, p. 381), that it would have been held that a provision granted by an heir in possession, from whom an estate might so devolve, would remain valid and effectual although the granter had been denuded of the estate prior to the time at which the bond came into operation.

The main questions, therefore, which appear to be here raised for decision are—1st, whether the power given by the Act 5th Geo. IV. to heirs of entail to grant provisions is restricted to cases where the entails do not contain clauses of devolution, or obligations to denude? and, 2d, whether, if that he not so, the Act is so worded as to render bonds of provision granted by the heir in possession inoperative, in the event of the estates devolving upon another heir before the death of the granter of the bonds?

(1.) With reference to the first of these points, the Lord Ordinary is of opinion that the statute contains no such restriction. Its leading provisions are very broad. They confer the right to make such provisions on ‘every heir of entail in possession of an entailed estate,’ without qualification either as to the time when the provisions may be made, or as to the conditions of the entail under which the estate may be held. And the enacting words being thus express, it appears to the Lord Ordinary to be clear that the right given by the statute so to charge an entailed estate cannot be confined to heirs who are in possession under entails which contain no such clauses as that here in question.

“(2.) The second point is, in the opinion of the Lord Ordinary, attended with more difficulty, as there are provisions in several clauses of the statute which seem in one view to indicate that the death of the granter is the period with reference to which the whole rights and obligations of the heirs were to be regulated; and it was contended that as the late Lord Kinnoul had, long prior to his death, ceased to be the heir in possession of the estate of Cromlix, the bonds granted by him while he was the heir in possession have now no legal effect. These clauses, however, which were strongly pressed in argument on the part of the defender, appear to the Lord Ordinary to have been framed solely with the view of regulating the measure and extent of the obligation created by the bond as in a question with the next succeeding heir, and not with the view of affecting, or in any way qualifying, the right of the heir in possession for the time to create the obligation; and, after repeated consideration of the clauses relied on, he has been unable to find anything in them to warrant him in holding that the validity of bonds granted under the power expressly conferred on all heirs of entail in possession to charge their estate, was to depend upon the contingency of the granter of the bonds remaining in possession up to the date of his death, and to that result the argument mainly relied on by the defender seems necessarily to lead. The existence of clauses of devolution were well known, and their effect upon the position of heirs of entail had been the subject of question prior to the date of the passing of the Act 5th Geo. IV.; and if the Legislature had intended that upon the devolution of an entailed estate bonds granted by the heir of entail in possession, under the powers given by the statute, were to become inoperative in respect of the granter having ceased before his death to be proprietor of the estate, they would, it is thought, have made express provision to that effect, and would not have left so important a matter to be gathered by inference and implication upon a comparison of the expressions used in various clauses of the statute.

On these grounds, the Lord Ordinary is of opinion that the defences to the main questions raised in the present action are not well founded. And, as regards the claim made by the defender, under his sixth plea in defence, to a share of the provisions sued for, that appears to be excluded by the words of the fourth section of the statute, by which such provisions are confined to children ‘who shall not succeed to the entailed estate.’ ”

The defenders reclaimed.

Solicitor-General and Shand for them.

Clark and Lee in answer.