Scottish Court of Session Decisions

This was an action at the instance of Thomas Wedderburn Ogilvy of Ruthven, in the county of Forfar, heir of entail in possession of the entailed estate of Ruthven, against Major John A. W. Ogilvy and the other heirs of entail of the said estate, to have it “found and declared that the deed of tailzie dated the 11th day of May 1820, recorded in the register of tailzies the 23d day of November and in the books of council and session the 28th day of December, both in the year 1826, made and executed by the now deceased James Ogilvy, Esq. of Ruthven, is and shall be deemed and taken to be invalid and ineffectual as regards all the prohibitions therein contained, in terms of the provisions in the 43d section of the Act 11 and 12 Victoria, cap. 36, and that the pursuer is entitled to hold, and holds, the foresaid lands and others above described, or such part thereof as now belongs to him, free from the conditions and provisions and clauses prohibitory, irritant, and resolutive contained in the said deed of taillie, with full power to sell and alienate the said lands and others, or part thereof, as aforesaid, or to contract debt thereon, or to alter the succession thereto at pleasure, and generally to deal with the same as unlimited fiar thereof, and that no action or forfeiture shall be competent at the instance of any heir-substitute under the destination contained in the said deed of taillie against the pursuer by reason of the contravention of any or of all of the prohibitions or conditions therein contained.”

The clauses in question are set forth in the condescendence, and are these:—“‘As also, that it shall not be lawful to any of the heirs of taillie to alter the line of succession, to sell, alienate, or dispone, redeemably or irredeemably, by feu, wadset, or in any other manner of way, the taillied estate, or any part thereof, or to do or grant any deed, or contract debts that may charge, burden, or affect the same, by any kind of right or security whatsoever, made or granted either before or after the succession opens to such heirs, whereby the tallied estate or any part thereof may be adjudged or evicted, or the taillied destination and line of succession hereby established diverted, altered, frustrated, or interrupted: As also, that it shall not be lawful to any of the heirs of taillie to grant tacks, assedations, or rentals of any part of the taillied estate, excepting only tacks for any space not exceeding twenty-one years, or for the endurance of three lives, all in being at the time of granting the tack.” “Declaring, as it is hereby and shall by the infeftments to follow hereon be declared and ordained, that all tacks, alienations, debts, or deeds contracted, granted, made or done in the contrary hereof, shall be in themselves null and void so far as concerns the taillied estate, or affecting the same, and that the heirs of taillie who shall make any such tacks or alienations, or shall contract debts, or do any other act, deed, or thing contrary thereto, or who shall neglect or omit to take and bear the name, designation, and arms, or to fulfil the other provisions herein contained, shall thereby, for themselves only, but not for their descendants, forfeit and lose their right to the taillied estate, and that the same shall, ipso facto, fall, accress, and be devolved to the heir of taillie next in the order of succession and not by the terms of the taillie excluded from the succession, although descended of the contravener's body, who may in terms of the statute immediately upon the contravention pursue declarators thereof, and serve heir to the person who died last infeft in the taillied fee, and did not contravene without necessity any ways to represent the contravener or contraveners, or may make up and establish a right to the tallied estate by adjudication, or by any other way competent by law to divest the contravener thereof, and to vest the estate in the heir who has the title to succeed after the contravener, but always under and subject to and affected with the whole provisions, conditions, and clauses irritant and resolutive herein contained.”

The pleas in law upon which the pursuer relied were these—“‘(1) The prohibition against the alteration of the order of succession contained in the deed of entail libelled on is not duly fenced either with an effectual irritant or resolutive clause. (2) Or otherwise, the said prohibition is not duly fenced with an effectual irritant clause.

(3) The said deed of entail does not contain a valid prohibition against the contraction of debt in terms of the Act 1685, cap. 22, duly fenced with irritant and resolutive clauses.”

The case was before the Lord Ordinary in November 1873, when his Lordship pronounced the following interlocutor:—

“ Edinburgh, 12 th November 1873.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record and deed of entail libelled on—sustains the defences, assoilzies the defender from the conclusions of the summons, and decerns: Finds the pursuer liable in expenses, of which allows an account to be given in, and remits the same when lodged to the Auditor to tax and to report.

Note.—The pursuer in the present action challenges the deed of entail of the estate of Ruthven on the ground that the prohibitory clause is not, in so far as regards the prohibition against alteration of the order of succession, duly fenced with effectual, irritant, and resolutive clauses. The Lord Ordinary is of opinion that the pursuer's objections to the deed are not well founded.

The prohibitory clause provides ‘that it shall not be lawful to any of the heirs of taillie to alter the line of succession, to sell, alienate, or dispone, redeemably or irredeemably, by feu, wadset, or any other manner of way, the taillied estate or any part thereof, or to do or grant any deed, or contract debts that may charge, burden, or affect the same by any kind of right or security whatsoever, made or granted either before or after the succession opens to such heir, whereby the taillied estate or any part thereof may be adjudged or evicted, or the taillied destination and line of succession hereby

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established diverted, altered, frustrated, or interrupted; as also that it shall not be lawful to any of the heirs of taillie to grant tacks’ except for any space not exceeding twenty-one years, or for the endurance of three lives, all in being at the time of granting the tack. The deed then proceeds to prohibit at considerable length other acts on the part of the heirs of entail, and to bind them to insure the mansion-house, offices, and furniture against loss by fire; and there is inserted between the prohibitions and the irritant and resolutive clauses a clause by which, ‘for giving more effect to these prohibitions, it is hereby declared that transgressions of these prohibitions and restraints, and how far any actings or doings are contrary thereto, within the meaning and intention thereof as above declared, shall be determined’ by the judgment of any five gentlemen of landed estates. Immediately after this peculiar and inept clause, the irritant and relative clauses are inserted in the following terms, ‘Declaring, as it is hereby and shall by the infeftments to follow hereon be declared and ordained, that all tacks, alienations, debts or deeds contracted, granted, made, or done in the contrary hereof, shall be in themselves null and void, so far as concerns the taillied estate, or affecting the same, and that the heirs of taillie who shall make any such tacks or alienations, or shall contract debts, or do any other act, deed, or thing contrary hereto, or who shall neglect or omit to take and bear the name, designation, and arms, or to fulfil the other provisions herein contained, shall thereby, for themselves only, but not for their descendants, forfeit and loose their right to the taillied estate, and that the same shall, ipso facto, fall, accress, and be devolved to the heir of taillie next in the order of succession.’

The pursuer admits that the prohibitory clause contains valid prohibitions against alterations of the order of succession, against alienation, and against the contraction of debt. But he maintains that the word ‘deeds’ in the irritant clause must be held to have the same meaning with the word ‘deeds’ in the latter part of the prohibitory clause, where it is confined to deeds charging, burdening, or affecting the estate by any kind of right or security whereby the estate may be adjudged or evicted. And on this reading he maintains that there is no irritancy fencing the prohibition to alter the order of succession. As regards the resolutive clause, the pursuer's argument is that the word ‘hereto,—‘ any other act, deed, or thing, contrary hereto,’—must be read as referring back only to the irritant clause, and as therefore liable to the same objection as the irritant clause.

The Lord Ordinary considers that the objections of the pursuer are opposed to the fair and true meaning of the words employed in the irritant and resolutive clauses. There is not, as was maintained by the pursuer, any positive rule in the construction of entails that a general word used in a limited sense in one part of a deed of entail must have the same limited meaning attached to it throughout the deed. Every word must receive its true meaning according to a fair and grammatical reading of the deed. If there is ambiguity, then the word is to receive the meaning which confers freedom from the fetters of the entail. But if there is no ambiguity—if there is nothing in the clause in which the general word is used which refers back to and connects it with the same word when used in a previous part of the deed in a limited sense, and if the context shows that the word was employed by the granter of the deed in its general signification, and can only be so construed according to the fair and grammatical meaning of the clause in which it stands,—then the general, and not the limited, meaning must prevail. In the present case there is nothing in the irritant clause to connect the word ‘deeds’ with the same word in the prohibitory clause. The irritant clause does not refer back to the prohibitory clause, and there is no relative connecting the two clauses. These clauses do not run into one another, but are separate and distinct. The kind of deeds intended to be covered by the use of that word in the latter part of the prohibitory clause is specified and defined, while in the irritant clause, so far from there being any specification or limitation, the most general and comprehensive terms are coupled with that word which the entailer could employ. He declares to be null ‘all’ ‘deeds made or done in the contrary hereof’—that is, every deed contrary to the entail, and to the prohibitions therein contained. The word ‘deed’ is in itself a general word sufficient to include all acts of contravention. To this word is prefixed the adjective ‘all,’ which shows that it was used in its most comprehensive sense in the irritant clause by the entailer. The quality of the deeds declared to be null is also clearly defined as being those ‘in the contrary hereof.’ So that, in point of extent, and in point of quality, every deed contrary to the prohibitions is declared null.

The irritant clause does not proceed on the principle of enumeration which, from omission in the enumeration, has proved fatal to so many entails. It is, on the contrary, a substantive and independent irritant clause, by which all deeds made or done in the contrary of the prohibitions of the entail are declared void and null. No doubt the clause, before mentioning ‘deeds,’ specifies ‘all tacks, alienations, debts;’ but it does not conclude with the general word ‘deeds,’ and it is not otherwise in such terms as to give rise to the objection that general words at the end of the enumeration are not presumed to extend beyond the enumeration. Such a presumption must yield to clear and distinct expressions to the contrary, such as are contained in this entail. The irritant clause concludes with the important words, ‘made or done in the contrary hereof,’—words which, when adfected to ‘all deeds,’ exclude, it is thought, any such presumption, as well as the view contended for by the pursuer, and leave no room for doubt that the fair and true construction is that all deeds are irritated which are contrary to the deed of entail and the prohibitions therein contained. The subject matter of the clause includes all deeds contrary to the prohibitions of the entail, and it is these which, in addition to tacks, alienations, and debts, are declared null. If this view be correct, then the prohibition against alteration of the order of succession is fenced with a valid and effectual irritant clause, because the words are so comprehensive as to reach every contravention.

The words ‘contrary hereto’ in the resolutive clause do not, the Lord Ordinary considers, refer to the irritant clause, but to the deed of entail and its prohibitions.

The similarity of the words employed in these two clauses, and the fact that they truly form one sentence, strengthen, if that were necessary, the construction which the Lord Ordinary is of opinion must be put, not only upon this clause, but also upon

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the irritant clause. See Mackintosh, 18 D. 249; Kintore, 23 D. 1105, 4 M'Q., H. of L. 520; Gilmour, 15 D. 587.”

The pursuer reclaimed.

Authorities— Lang v. Lang, M Lean & Robertson, 871; Scott v. Scott, 18 D. 168; Rollo v. Rollo, 3 Macph. 78; Preston v. Heirs of Valleyfield, 1 D. 332.