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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Honourable Robert Preston Bruce, Petitioner [1874] ScotLR 11_398 (6 March 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0398.html
Cite as: [1874] SLR 11_398, [1874] ScotLR 11_398
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
(Before the First Division, with
Facts:
An heir of entail born subsequent to August 1848, and holding the estates under an entail dated, prior to August 1848, by which it was provided that whenever the heirs called thereby to the succession of the said estates should come to inherit a certain title and earldom they should be bound to demit the possession of the said estates in favour of the heir next in succession,— held (diss. Lords Deas, Neaves, and Jerviswoode) to be an heir of entail in
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possession of an entailed estate by virtue of a tailzie within the meaning of sec. 2 of the Entail Amendment Act.
This petition was presented by the Honourable Robert Preston Bruce, second son of the late Earl of Elgin, for authority to record an instrument of disentail of the lands of Spencerfield and others, which he held under the settlement of the late Sir Robert Preston of Valleyfield, and to acquire them and a considerable amount of trust-funds in fee-simple. The deed of entail was in the following terms (after settling the lands on himself and certain substitutes):—“whom failing, to Charles Dashwood Bruce, merchant in London, son of the Honourable Bruce, brother of Thomas Earl of Elgin and Kincardine, and the heirs-male of his body; whom failing, to the Honourable James Bruce, second son of the said Thomas Earl of Elgin and Kincardine, so long as he shall not succeed to and be in right of the title of Earl of Elgin, and the heirs-male of his body not succeeding to or being in the right of the said title; whom failing, to the third and other younger sons of the said Thomas Earl of Elgin and Kincardine, in the order of their seniority, and the heirs-male of their bodies respectively, not succeeding to or being in the right of the said title, it being his will and intention that his family name and estates should never merge in the said title or estates belonging to it, but that whenever the heirs thereby called to the succession of his said estates should come to inherit the title and represent the family and earldom of Elgin, they should be bound to demit the possession of his said estates in favour of the heir next in succession according to the order and course above expressed.” On the death of Mr Charles Dashwood Bruce, then named Charles Dashwood Preston Bruce, without issue male, on 25th August 1864, the succession to the entailed estates opened to the petitioner, who was the second son of the late Honourable James Bruce, afterwards Earl of Elgin; his elder brother, Victor Alexander Bruce, the present Earl of Elgin, being excluded in consequence of his succession before the above date to the earldom.
In addition to the above-mentioned lands, Sir Robert Preston directed that the whole residue of his estate, amounting to a large sum, should be invested in heritable property and entailed in the same terms as the Spencerfield property. This money, however, still remained in the hands of the trustees. The petition was opposed by Sir Robert Preston's sole surviving trustee, Mr Hope Johnstone of Annandale.
The Lord Ordinary pronounced the following interlocutor:—
“ Edinburgh, 10 th June 1873.—The Lord Ordinary having considered the petition and proceedings, with the report by Mr Colin Mackenzie, W.S., No. 20 of process—Sustains the title of the petitioner, as the heir of entail in possession of the entailed lands mentioned in statement first of the petition, to insist in the present application: Finds that as such heir of entail in possession of the said entailed lands and estates by virtue of the decrees of special service, duly registered in the Register of Sasines, and other writs mentioned in statement third of the petition, the petitioner is entitled, by virtue of the provisions of the Statute 11 and 12 Victoria, cap. 36, with the authority of the Court, to disentail the estates and funds which form the subject of the petition, and for that purpose to have the warrant and authority of the Court to record the instrument of disentail, No. 14 of process, and warrant and authority for payment to him of the residue of the trust-estate mentioned in the petition: Finds that the procedure has been regular and proper, and in conformity with the provisions of the Acts of Parliament and relative Acts of Sederunt: Approves of and interpones authority to the instrument of disentail, No. 14 of process: Grants warrant to and ordains the keeper of the Register of Tailzies to record the said instrument of disentail in the said register; and further, grants warrant and authority to and in favour of the petitioner for payment to him of the whole residue of the trust-estate of the deceased Sir Robert Preston of Valleyfield, Baronet, conveyed by his trust-disposition and settlement and will, dated 17th October 1832, signed in duplicate on 17th April 1833, and registered in the Books of Council and Session 20th May 1834, and falling to be administered in terms of that deed, and of letters o instructions by Sir Robert Preston, dated 2d January 1833, signed in duplicate 17th April 1833, and of three codicils executed by him of dates 15th April, 19th October, and 25th December 1833, as now belonging to the petitioner in fee simple: Grants warrants to, authorises, and appoints the respondent John James Hope Johnstone, as sole surviving trustee, acting under the said trust-disposition and deed of settlement of the said Sir Robert Preston, and any other person or persons in whom the same or any part thereof may be vested, to dispone and convey or pay and make over to the petitioner in fee-simple the whole estate, funds, and effects, heritable and moveable, vested in him or them, or to which he or they have right as belonging to or forming part of the trust-estate of the said Sir Robert Preston, but under the burden of all debts, claims and liabilities affecting the said trust-estate, and to execute the necessary dispositions and conveyances or assignations or other deeds or instruments which may be requisite for these purposes, and decerns ad interim: Remits to Mr Mackenzie to adjust the drafts of such deeds or instruments, and to see the same duly extended, and so far as necessary feudalized; and to report.
Note.—This application raises two questions of importance under the Entail Amendment Act of 1848, commonly known as the Rutherfurd Act, and also involves a pecuniary interest of considerable amount.
The object of the application is, first, the disentail of the estates of Spencerfield and others, included under a disposition and deed of entail dated 3d November 1832, and recorded in the Register of Entails 14th February 1835, granted by the deceased Sir Robert Preston of Valleyfield, Bart., in favour of himself and the heirs of his body, and a series of other heirs of entail; and second, the acquisition in fee-simple of certain heritable subjects mentioned in statement 12th of the petition held by the respondent, Mr Hope Johnstone of Annandale, as the sole surviving trustee under the trust-disposition and deed of settlement and will, dated 17th October 1832, signed in duplicate on 17th April 1833, and registered in the Books of Council and Session 20th May 1834, by Sir Robert Preston, for the purpose of being entailed with the same destination and under the same conditions as are contained in the Spencerfield entail; and farther, the payment to the petitioner of the funds, amounting in all to
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upwards of £110,000, specially mentioned in statement 12th of the petition, and which funds were conveyed by Sir Robert Preston by his trust-deed above mentioned to his trustees, of whom Mr Hope Johnstone is now the sole survivor, for the purchase of lands lying in the neighbourhood of the Spencerfield estates to be entailed in terms of the deed of entail above mentioned, under which these estates are now held. The lands and sums of money now mentioned, particularly specified in statement 12th of the petition, form the residue of the trust-estate conveyed by Sir Robert Preston's trust-disposition and deed of settlement. The legacies and annuities left by him have been paid, and the only trust purpose remaining to be fulfilled is the execution of a deed of entail or deeds of entail of the lands held under the trust, and of other lands to be purchased by the trustees in terms of Sir Robert Preston's directions to that effect. The deed of entail of the estates of Spencer-field and others was, as already stated, recorded in the Register of Entails in 1835. The petitioner was born on 4th December 1851, and was therefore at the date of presenting the application upwards of twenty-one years of age. His title to the estates was completed by service and infeft-ment in 1864, and since that time he has been in possession.
The application is not opposed by any of the succeeding heirs of entail, nor by the present Earl of Elgin, who has held the petition as duly intimated to him, conform to certificate under his hand, No. of process. But Mr Hope Johnstone, the only surviving trustee under Sir Robert Preston's settlement, appeared by counsel and opposed the granting of the application, and the grounds of this opposition are stated in a minute lodged by him. and forming No. 23 of process.
From this minute, and from the report of Mr Colin M'Kenzie, W.S., to whom the Lord Ordinary remitted the proceedings, it appears that the objections against the granting of the prayer of the application are three. The first of these is, that the petitioner is not heir of entail in possession within the meaning of the statutes founded on; the second, that the entail of the lands other than the estate of Spencerfield and others comprehended within the deed of 1832, at present forming part of the trust-estate and of the lands to be purchased with the residue of the trust-funds, did not fall to be granted until the year 1862, and that under the Entail Amendment Act the petitioner is therefore not entitled to disentail without the consent of the next heir born after the date of the entail, and of the age of twenty-five years complete; and the third objection, which has reference to the greater part of the funds belonging to the trust is, that owing to the position of these funds, as being now under the control of the Court of Chancery, the application cannot be granted.
The Lord Ordinary has come to the conclusion that none of these objections are well founded, and he has accordingly granted the prayer of the petition. He will now deal with each of the objections urged, separately
1. The first ground on which it is urged for the respondent that the application ought not to be granted is thus stated by him—’ (1) Because the petitioner is not heir of entail in possession within the meaning of the sections of the Rutherfurd Act, upon which the petition is founded. If the petitioner's elder brother, the Earl of Elgin, married and had a son, that son would be entitled to the estates, and the petitioner would be bound to denude of them in his favour, and if the said Earl of Elgin died without male issue, and the petitioner succeeded to the earldom, he would be obliged to devolve the estates upon the person possessing the character of next heir under the destination. Any right which the petitioner has is thus fiduciary, provisional, and defeasible.’
In so far as regards the lands held under the existing entail of 1832, recorded in 1835, the respondent has no title to urge the objections stated by him, but it is the duty of the Court, in reference to such applications as the present, even where there is no opposition, to see that the applicant has the right which he seeks to exercise; and the Lord Ordinary has therefore no difficulty, from the absence of anyone having a title to urge the objection, in now taking it up and dealing with it, not only in regard to the residue of the trust-estate, but in regard to the entailed lands of Spencerfield and others. The objection applies to the whole of these subjects equally, and, if sound, is fatal to the application as a whole.
The petitioner, on the death of Charles Dashwood Bruce without male issue on 25th August 1864, succeeded to the entailed estates under the following branch of the destination:—‘Whom failing, to the Honourable James Bruce, second son of the said Thomas Earl of Elgin and Kincardine, so long as he shall not succeed to and be in right of the title of Earl of Elgin, and the heirs-male of his body not succeeding to or being in the right of the said title.’ The Honourable James Bruce here mentioned succeeded to the earldom of Elgin, and on his death in 1863 his eldest son, Victor Alexander Bruce, the petitioner's immediate elder brother, became Earl of Elgin. When Mr Charles Dashwood Bruce died in August 1864, the petitioner, as the nearest heir-male of his father ‘not succeeding to or being in the right to the said title’ of Earl of Elgin and Kincardine, took up the entailed estates. The destination clause in the entail, which is narrated on page second of the petition, further contains these words—‘It being my will and intention that my family name and estates shall never merge in the said title or estates belonging to it’ (that is, belonging to the earldom of Elgin and Kincardine), ‘but that, whenever the heirs hereby called to the succession of my said estates shall come to inherit the title and represent the family and earldom of Elgin, they shall be bound to demit the possession of my said estates in favour of the heir next in succession, according to the order and course above expressed.’
Under the destination it is clear that if the petitioner, by the death of his brother without issue, should succeed to the earldom of Elgin, he would be under obligation to denude of the estates of Spencerfield and others in favour of the heir next in succession. The respondent further maintains that if the present Earl of Elgin should marry and have a son, that son would be entitled to the estates, and the petitioner would be obliged to denude of them in his favour. There may be room for questioning the soundness of this proposition. There is no clause in the entail which provides that in the case of a nearer heir under the destination coming into existence after a second son of an Earl of Elgin has succeeded and made up his title to the estates, such second son shall thereupon denude of the estates in favour of the issue of an
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elder brother who are necessarily in the direct line of heirs to the Earldom of Elgin, and there is some room for the argument which was maintained successfully in the case of Boquhan Campbell v. Campbell, 10th July 1868, 6 M. 1035, as distinguishing it from the case of Carnock Stewart v. Nicholson, &c., December 1859, 22 D. 72; and for thus maintaining that the estate having once gone to a second son of an Earl of Elgin, does not under the destination, and in the absence of a direct provision to that effect, revert to the family of a first son coming afterwards into existence. The Lord Ordinary does not, however, consider it necessary to deal with this question. For the purposes of the present question he assumes that the respondent is right in holding that the present petitioner would be bound to denude of the estates in the event of an nearer heir under the destination,—a lawful son of his elder brother—coming into existence, and even in that view he is of opinion that the petitioner is entitled to succeed in the application. The person entitled to disentail an entailed estate or trust-funds appointed to be invested in land to be entailed is, under the Rutherfurd Act, the heir of entail ‘in possession of such entailed estate by virtue of such tailzie.’ These are the words used in the 1st and 2d sections of the Act. The words of the 3d section, which also provides for disentail, are ‘any heir of entail… in possession of an entailed estate in Scotland holden by virtue of any tailzie,’ &c. In most cases deeds of consent by succeeding heirs are required, but in the case of an estate held by virtue of an entail dated prior to the Rutherfurd Act (1st August 1848), it is made ‘lawful for any heir of entail born on or after the said 1st day of August, being of full age and in possession of such entailed estate by virtue of such tailzie, to acquire such estate in whole or in part in fee-simple,’ by executing, under the authority of the Court, an instrument of disentail as therein provided. The expression in the various sections giving power to disentail is the same, and the question which arises in each case is whether the petitioner is the heir of entail in possession of the entailed estates by virtue of the tailzie thereof. If he be, he is entitled to exercise the powers given by the statute.
The Act itself contains no clause of interpretation or declaratory clause defining or declaring the meaning of the words ‘heir of entail in possession under such tailzie.’ There is no limitation of the effect of these words, so as to make them apply only to persons in possession of an estate as heirs of entail under the deed of entail, whose right to the estate must continue to exist until their death. Accordingly, it appears to the Lord Ordinary to be clear that although an heir of entail in possession of an estate should hold it under a condition that in the event of his succeeding to a certain title, or to another and more important estate, or in some other event which may or may not happen in the course of his lifetime, he shall denude in favour of another party, such heir in possession is within the meaning of the statute in the different clauses above referred to, and is entitled, with or without consents, according to his particular position and age, to disentail the estates under the statutes. The Lord Ordinary is not aware of any case in which this question has been raised, but he cannot doubt that disentails have been carried through under entails containing such clauses, and he thinks the right of an heir in possession under such an entail to carry through a disentail is not doubtful. Before the Entail Amendment Act, it was held in the case of Eglinton v. Hamilton and Others, June 3, 1847, 9 D. 1167, affd. 6 Bell's App. 136, that an heir of entail in possession of an estate under an entail containing such a clause of devolution was not an interim holder or fiduciary fiar merely, but as an ordinary heir of entail was entitled to take advantage of a defect in the tailzie, and to sell the estates. If, in such a question, an heir holding the estate under such a tailzie be regarded as an ordinary heir entitled, taking advantage of a defective entail, to sell the estate, there appears to be no good reason to doubt that he is heir of entail in possession of the estate in terms of the statute founded on in the present application.
But it is said the case is quite otherwise if the right be of such a conditional or contingent nature that it comes to an end by the birth of an heir called earlier in the destination. In that case, it is said, the person holding such a qualified right cannot be regarded as the heir in possession to all intents, but merely as a fiduciary heir holding for another, and the carnock case and the case of M'Kinnon, there referred to, are cited in support of this contention. The Lord Ordinary is unable to adopt this view. The petitioner, or any one like him, holding an entailed estate subject to the contingency of a nearer heir coming into existence and superseding him in possession of the estate. is nevertheless heir of entail in possession. He acquires right to the estate because of his being the heir entitled to possess in virtue of the tailzie, and his service is the evidence of his right. During his possession he is entitled to exercise all ordinary acts of administration of the estate, like any other heir. His right, no doubt, may be resolved by the occurrence of a contingency which may or may not happen; but till that event occurs he is to all intents the heir entitled to possession, and to exercise the rights which flow from that possession—drawing the rents, letting the lands, and the like. It may be a question whether he could effectually charge the estate under the Aberdeen Act with children's provisions, which should take priority of such provisions made by a nearer heir coming afterwards into existence; for that statute fixes the provisions according to a standard which can only be appealed to on the death of the granter of the deed. Even in the case of such provisions, it appears to the Lord Ordinary that they would be effectual. Whether the amount could be charged in competition with provisions by a nearer heir would depend on the estate being liable to a charge at the death of the granter, which it might not be if the nearer heir having possessed should be the first predeceaser leaving a bond of provision creating a charge.
But however this may be, the statute now under consideration (the Rutherfurd Act) having given the power to disentail—or, in the words of the statute, ‘to acquire such estate in fee-simple,’ to heirs of entail in possession under the entail of the estates, without any limitation arising from the defeasible nature of the heir's title, even from the occurrence of a contingency which might resolve his right, the Lord Ordinary is of opinion that the Court is not entitled to introduce such a limitation, or to presume that any such limitation was intended. If it could be shown that the person in possession is not an heir because his right may be resolved, the case would be different
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But he draws the rents and enjoys the possession, not as a fiduciary for another, but for himself and in his own right, as an heir who has expede a service and was entitled to do so as nearest heir in existence under the entail; and though the right of such an heir has been spoken of as fiduciary, this expression has reference merely to the fact, which it is used to express, that his right is subject to an obligation to give up his enjoyment of the estate from the date when a nearer heir comes into existence. It has no doubt been held, in the case of M'Kinnon and in the Carnock case, that such an heir could not give an indefeasible and effectual title to the purchaser of an estate where the fetters of the entail were bad. The ground of judgment was that the party's right was qualified and conditional, and therefore defeasible under the destination; and that the purchaser having notice of this, could not take a higher right. But in the present question, conditional though the right be, the person in possession has acquired this possession by his right as an heir and by virtue of the tailzie, and this is all that the statute contemplates as necessary to give the right to disentail. That right is one conferred by the Legislature, and the question to be solved is simply, How large was the class of persons to whom it was given? This is altogether different from the question in the Carnock case, as to whether at common law an heir in possession having a qualified right could in a question inter heredes give a higher right than he himself possessed. The very purpose of the Legislature under the Entail Amendment Act is to give heirs in possession of entailed estates rights which are entirely contrary to the provisions of the deeds of entail under which they acquire and hold the estates; and if the petitioner is able to show, as the Lord Ordinary thinks he is, that he comes within the description of persons entitled to exercise the power to disentail conferred by the statute, then the question under consideration must be answered in his favour. The Lord Ordinary, in coming to this conclusion, is aware that there are strong expressions in the opinions of some of the Judges in the Blackwood's case which may fairly be said to indicate a contrary opinion.
Indeed, Lord Curriehill, while explaining that even an heir holding an entailed estate under a destination similar in its effects to the present is for the time, and until superseded by the birth of a nearer heir, the proprietor in whom the jus dominii has vested, has yet indicated that such an heir could not in his opinion disentail the estate with or without consent of the next heirs. The Lord Ordinary has given the best consideration to these views, but is unable to concur in them. It is worthy of observation that he has had to consider particularly the terms of the statute, which were not before the Court in any way in the Carnock case.
The case of a nearer heir in utero would of course raise a different question, and in the opinion of the Lord Ordinary would probably deprive the possessor of the character of heir in possession entitled to exercise the power of disentail, but there is no case of that kind here; and, on the whole, the Lord Ordinary is of the opinion that the first objection above referred to is not well founded.
2. The second ground on which it is urged for the respondent that the application ought to be efused is thus stated:—‘2 Because the entail of the lands forming part of the residue of the trust-estate, and of the lands to be purchased with the remainder of the same, did not fall to be made until the year 1862, and the petitioner is therefore not entitled to disentail without the consent of the next born heir after the date of the entail and of the age of twenty-five years complete.’
The question thus raised has been decided by the Lord Ordinary in the case of the petition of Captain James Scott Black (26th May 1873), and for the grounds of this decision he refers to that case. In accordance with the opinion which he there expressed, the Lord Ordinary holds that under section 28th of the statute the date of the entail of the lands held by the respondent, and of any lands to be purchased by him in terms of the directions in Sir Robert Preston's trust-deed for the purposes of the statute, including disentail in virtue of its provisions, must be held to be the date when that deed first came into operation by the death of Sir Robert Preston, viz., 7th May 1.834, and that the entail in the present case must therefore be taken as prior to the Btatute.
3. The respondent objects to the application being granted:—‘3. Because the funds to which the petition relates are for the most part at present now under the control of the Court of Chancery.’
The Lord Ordinary is, however, of opinion that wherever the funds may be locally situated, provided they fall within the operation of the trust-deed, and are conveyed to the trustees for the purpose of purchasing lands to be entailed, the petitioner is entitled to a decree from this Court disentailing these funds and giving him right to payment of the amount for his own benefit. He may have to take proceedings in the Court of Chancery before he can obtain the money, but that does not seem to create any ground depriving him of his right to a decree in this Court, or which requires this Court to refuse to give effect to the application.”
The respondent reclaimed, and submitted that the prayer of the petition ought not to be granted, for the following reasons:—“(1) Because the petitioner is not heir of entail in possession within the meaning of the sections of the “Rutherfurd Act” upon which the petition is founded. If the petitioner's elder brother, the Earl of Elgin, married and had a son, that son would be entitled to the estates, and the petitioner would be bound to denude of them in his favour, and if the said Earl of Elgin died without male issue, and the petitioner succeeded to the earldom, he would be obliged to devolve the estates upon the person possessing the character of next heir under the destination. Any right which the petitioner has is thus fiduciary, provisional, and defeasible. (2) Because the entail of the lands forming part of the residue of the trust-estate, and of the lands to be purchased with the remainder of the same, did not fall to be made until the year 1862, and the petitioner is therefore not entitled to disentail without the consent of the next heir born after the date of the entail, and of the age of 25 years complete. (3) Because the funds to which the petition relates are for the most part at present now under the control of the Court of Chancery.”
Argued for him—The petition applies to three classes of subjects (1) lands already entailed; (2) lands belonging to Sir Robert Preston, to be entailed; (3) a sum of money to be invested in land
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to be entailed. On the authority of Black's Trs., Nov. 4, 1873, the last two may be held to stand in the same position as the first. James Earl of Elgin died in 1863, so that on the death of Charles Preston Bruce in 1864 it was to Lord Elgin's heirs that the Spencerfield succession opened, and the eldest son of these was disqualified as having succeeded to the Earldom. There is a wide distinction between tailzied and intestate succession. The old rule was that as long as a nearer heir was possible a remoter heir was not allowed to enter at all; this rule, from motives of convenience, was subsequently so far relaxed that the remoter heir was allowed to hold the estate as a fidei commissum, and when a nearer heir appeared he took, not as succeeding to the remoter heir, but on the footing that the latter had no right to succeed at all (Lords Ivory and Curriehill in Carnock case; Lord Advocate Rutherfurd in Eglinton case; Lord President Inglis in Boquhan case). The remoter heir holds under a condition or trust; the trust emerges on the birth of a nearer heir, and it is to denude in the latter's favour. [ Lord Ardmillan—The question is whether an heir of entail in possession sub conditione is enabled by the Ruther-fnrd Act to clear himself of that condition.] Under the Rutherfurd Act, if there be nothing between an heir in possession and the fee-simple of the estate except the fetters of the entail, he is entitled to have these struck off; but there is a great deal more than that between the petitioner and the fee-simple, and he is not in a position to apply for the advantages granted by the Act. He must satisfy three requisites; (1) He must be an heir of entail; (2) he must be in possession of the estate; (3) he must be so in virtue of the tailzie. Being a mere fiduciary holder, he does not satisfy the last two conditions. Authorities— Bruce v. Melville, Feb. 22, 1677. M. 14,880; Mackinnon v. Macdonald, M. 5290, 6566; Mackenzie v. Mounstewart, M. 14,903; Stewart v. Nicolson, Dec. 1859, 22 D. 72; Eglinton v. Hamilton, June 3, 1847, 9 D. 1167, 6 Bell's App. 149; Fletcher v. Fletcher Campbell, July 10, 1868, 6 Macph. 1035.
Argued for petitioner—There are two questions raised by this petition—(1) Whether, even assuming his title to be defeasible, the petitioner is entitled under the Rutherfurd Act to disentail, which turns on the construction of the statute? (2) Whether, in the event of a nearer heir being born to his brother Lord Elgin, he would be bound to denude, which turns on the construction of Sir Robert Preston's destination? The respondent's argument was directed mainly to the third requirement of the statute—that he must be an heir of entail in possession by virtue of the tailzie. Would not Mr Preston Bruce be subject to the penalties of contravention of the entail? Is he not bound to assume, as he has done, the name and arms of the entailer? The case of Bruce v. Melville was overruled by the case of Mackenzie v. Mountstewart, which has been followed ever since. Mackinnon v. Macdonald only decided that when a nearer heir came into existence the holder was bound to denude, but it was decided in a subsequent branch of the case ( 2 Pat. 252) affirmed on appeal by the House of Lords, that a sale by him during his holding was not reducible. In another branch of the same case it was held that such an heir might make provision for his widow. This entail contains no clause of devolution in the event of a nearer heir being born. The heir of entail who takes under it becomes the head of a stirps by a right only defeasible in the event of his succeeding to the Earldom—that being the only contingency to which the clause of devolution is directed.
At advising—
Now the question comes to be, whether he is in the position contemplated by these sections. The 2d section of the statute provides, “That where
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Now the title of the petitioner was made up, in so far as the entailed lands are concerned, by three decrees of special service dated in the year 1864, with warrants of registration, upon which these decrees were duly registered in the Register of Sasines; and so the right of the petitioner as heir was to be derived, and that was followed by writs of confirmation from the crown. Now the title of the heir or the petitioner, as appearing upon the face of these decrees and writs of confirmation, is an unqualified title. It is neither a title in trust, nor is it a title under a condition, in so far as appears upon the face of the title. But no doubt there is a condition attached to the title and the right of the petitioner. It is attached by the law, but not by the form of the title itself; and the important question which we have to consider, in the first place, is what is the nature of that condition, and what is the character of the title and of the possession of the petitioner? Now I think one proposition may be laid down with perfect certainty, and that is, that whatever may be the qualification of this petitioner's title, he is the fiar of the estate. I am speaking now of the entailed estate, for the sake of clearness, apart from the unentailed lands and money, which, however, really must follow. I confine my observations, in the first place, to the entailed lands; and I think it cannot admit of dispute that he is the fiar of the estate. No doubt he is a limited fiar; but so is every heir of entail, and the only difference between him and any other heir of entail is, that the limitation of his title is somewhat different, and perhaps somewhat greater, than in the case of an ordinary heir of entail. But he is in the eye of the law, just as much as any heir of entail is, a limited fiar of the estate in which he stands infeft. The respondent in his argument made reference to a passage in the judgment of Lord Curriehill in the case of Grant's Trustees, which I think defines and explains the position of an heir situated as the petitioner is, very clearly and very satisfactorily. After going through the cases of Bruce v. Melville and Mountstewart v. M'Kinnon, his Lordship says, “The law thus ultimately reconciled the difficulties which had at first been suggested with reference to this class of questions. On the one hand, the eventual right of the posthumous heir is saved entire for him if he come into existence; on the other hand, not only is the inheritance not left in pendente, but the party who is in the position of being the nearest heir for the time is the conditional fiar of the estate—the condition of his right of fee being that he is bound to denude of it in favour of the nearer heir who is in spe, if eventually he should emerge. That obligation, moreover, besides being no obstacle to the conditional fee vesting in the meanwhile in such remoter heir, expires ipso facto if the existence of such nearer heir becomes impossible—which it always does on the death without issue of the party by whom alone such a nearer heir could be procreated.” In the reports of the cases of Mountstewart and of M'Kinnon, this right of fee is denominated a fidei commissum: this, however, plainly means not that the fee, or jus dominii, does not truly belong in the meantime to the party himself in whom it is vested, but merely that that fee is ipso jure qualified by such a contingent condition. I really could add nothing to that expression of the opinion of Lord Curriehill which would have the effect of making clearer what I conceive to be the true position of the petitioner here. He is fiar of the estate; but in a certain contingent—or rather I should say in a contingent and uncertain—event, he may be deprived of that fee. But, on the other hand, he may never be disturbed in his possession of the estate and in his title to that estate and its possession. He may transmit the estate to the heirs of his own body
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But the next question comes to be—and I think it is quite necessary to determine this also—what will be the effect of allowing the petitioner to execute an instrument of disentail, and also to obtain possession of the unentailed land and payment of the money directed to be invested in land and entailed. As far as the disentail of the entailed lands is concerned, this is made very clear by the 32d section of the statute, which provides, “That an instrument of disentail when duly executed and recorded shall have the effect of absolutely freeing, relieving, and disencumbering the entailed estate to which such instrument applies, and the heir of entail in possession of the same, and his successors, of all the prohibitions, conditions, restrictions, limitations, and clauses irritant and resolutive, of the tailzie under which such estate is held; and of entitling such heir in possession to alter the course of succession prescribed by such tailzie, and to alienate and dispone such estate onerously or gratuitously, and to burden the same with debt, and to do any other act or thing in relation thereto competent by the law to any absolute proprietor in fee-simple.” These latter words appear to me to be extremely important to the question. And it is further provided, “That such instrument of disentail shall not defeat or affect injuriously any charges, burdens,” and so forth, “of third persons lawfully affecting the fee or rents of the estate, or such heir in possession other than the rights and interests of the heirs-substitute of tailzie, in or through the tailzie under which such estate is held.” In connection with this clause, it is also not unimportant to observe the terms of the instrument of disentail itself, as given in the schedule appended to the statute, in which the heir takes instruments in the hands of a notary public that the lands and others are now held by him free from the conditions, provisions, and clauses prohibitory, irritant, and resolutive of the entail by virtue of this Act. Now, what is meant by saying that an heir of entail who executes and records an instrument of disentail is put in the same position as an absolute proprietor in fee-simple? These were not technical words in the law of Scotland before this statute. They are rather borrowed, I think, from English law, but I do not apprehend that their meaning can be disputed. They mean that the heir of entail shall come to be in the same position, not as a person who takes as an heir of provision under a destination,—that is certainly not the meaning of them,—but he is to be in the same position as a direct disponee or an heir-at-law, making up his title by special service and infeftment. That is what his position is to be, and therefore I do not doubt in the least degree,—and it is quite necessary that we should see what is the effect of the proceeding that we are asked to authorise here—I do not doubt in the least that this petitioner will be placed in the position of an absolute proprietor in fee-simple in that sense, just as if he had taken up the estate as heir-at-law ab intestato, or had it conveyed to him by absolute disposition. In that case, of course, it is needless to say that neither a disponee to whom no such condition as we are dealing with here could possibly attach, nor an heir-at-law making up his title ab intestato, could possibly be affected with the resolutive condition which attaches ipso jure to the petitioner's fee as he stands at present; and therefore the effect of the disentail will undoubtedly be to liberate his title from that resolutive condition, and to make him absolutely free from it. It is pretty plain, therefore, that if the petitioner is entitled to become fee-simple proprietor, the proceeding under this statute is admirably adapted to afford him the remedy which he desires. If it had been devised for the purpose of meeting the case of this petitioner it could not have been better devised. But then the question occurs, Is it intended to apply to the case of a remoter heir served while another and nearer heir is in spe? To that I am inclined to answer by another question, Why should it not apply? If it is not intended to apply to such a case, the case could have been easily excepted from the operation of the statute by express words, and it cannot be said that the case of an heir in the position of this petitioner is so uncommon or so little known to the law that the framers of this Act of Parliament could not have had it in contemplation. On the contrary, I think that the fair presumption is that they had it in contemplation, and as they have not expressly excepted it from the enactment of the statute, the natural inference is that it was not intended to be excepted. For, in the second place, I think there cannot be much doubt that the words of the 2d section of the statute clearly cover the case of the petitioner. Is he not an heir of entail? Surely it is impossible to dispute that. He never could have taken this entailed estate—he never could have become fiar of this entailed estate—if he had not been the heir of entail called to it by the destination. And if he be an heir of entail, then the next question comes to be, Is he not in possession? Why, even the argument of the Lord Advocate conceded that his possession was unconditional as long as it lasted,—that there was nothing to suspend his possession, or prevent his possession being a full and beneficial possession. If, then, he is an heir of entail in possession, he must also be in possession plainly by virtue of the tailzie, for by no other means could he possibly have obtained it; and therefore I think the words of the clause cover the case. But, in the third place. I think it is equally clear that the case of the petitioner falls
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With regard to the other part of the case, depending upon the 27th section of the statute, it follows so clearly from the other that I really won't detain your Lordships by making any further observations upon it. I have confined my observations to that view of the case which would apply to every remoter heir of entail served while another heir was in spe. There are a number of peculiarities in this case, which may be very fairly appealed to in illustration and confirmation of the opinion which I have formed. There is the case of the devolution of the estate in the event of the heir of entail in possession succeeding to the Earldom of Elgin; and the question will arise there, whether that provision of the tailzie could prevent the heir in possession from availing himself of the provisions of the 2d section of the statute. It would be very strange if it did, because the effect of that would be that it would be in the power of a person, by introducing such a clause of devolution into his entail, to defeat the Entail Amendment Act altogether in so far as disentailing is concerned. Now, is there any distinction in point of principle between the case which occurs here—I mean the provision of the law which we have been considering here—and that provisio communis contained in the entail itself regarding the devolution on the succession to the Earldom? I think in principle there is none. In the one case and in the other the right of the heir in possession is subject to a resolutive condition, the one being introduced by the entail the other introduced by the law,—that is, the law of tailzied succession; for it is not a general principle of the law of Scotland applicable to any case, except a case of succession under a destination; and therefore it appears to me, that even if this gentleman had not been a remoter heir with a nearer heir in spe, but had taken up this estate as the nearest possible heir, the same objection might have been stated to his disentailing, because his right is subject to be defeated in the event of his succeeding to the Earldom. But I have purposely abstained from making that part of my ground of judgment, as I originally stated, because I think it is quite right that we should deal with this case upon general principles, and not with reference to any peculiarities in this particular deed or set of deeds. I am therefore for adhering to the Lord Ordinary's interlocutor.
The three nieces all died without issue, and Charles Dashwood Bruce (who was the brother of Earl Thomas) succeeded. He died without male issue on 25th August 1864. Meantime, the Honourable James Bruce, and on his death his eldest son Victor Alexander, the present Earl, had succeeded to the Earldom, and consequently the estates then stood destined to the sons of the present Earl in the order of their seniority and the heirs male of their bodies respectively not succeeding to the title; and after them to the petitioner, the younger brother of the present Earl, and the heirs male of his body, subject to the same condition.
It happened, however, that at the death of Charles Dashwood Bruce the present Earl was unmarried, and the petitioner was consequently allowed to serve and enter into possession of the entailed estates, subject to the contingency of being called upon to denude in favour of any son who may be born to the Earl in the event of his marriage, which has not yet occurred.
It is in these circumstances that the petitioner proposes to acquire the said estates in fee simple, by executing and recording an instrument of disentail under section 2 of the Entail Amendment
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The important question is, whether the petitioner is, in the sense of section 2 of the Entail Amendment Act, the heir of entail in possession of the entailed estate of Inverkeithing and others by virtue of the tailzie, and consequently entitled to acquire that estate in fee simple by executing and recording an instrument of disentail? If he is in titulo so to acquire that estate, it seems to follow that he is likewise entitled to succeed in his application as to the whole residuary estate, heritable and moveable, held by the respondent as sole surviving trustee under Sir Robert Preston's trust-deed and settlement, and for whom alone, as such surviving trustee, appearance has been made to oppose the prayer of this petition.
It is conceded that the tailzie is dated prior to 1st August 1848; that the trust-deed came into operation before that date; that the petitioner was born after that date, and that he is of full age. It is also conceded that he was allowed without opposition to expede a special service as heir of tailzie and provision to Charles Dashwood Bruce in the lands comprehended in Sir Robert's deed of entail, and to record that service in the Register of Sasines, which is equivalent to infeftment. Farther, it was not disputed at the bar that the petitioner is now in the beneficial occupancy and enjoyment of the entailed lands, although I do not find that the period when that enjoyment opened to him, or to his predecessor Charles Dashwood Bruce, by the death of the last of the three nieces and of Sir John Hay, is stated in the petition. As to the stocks and funds in Chancery, the petitioner does not explain their position, nor does he say whether he has hitherto had any beneficial enjoyment either of these or of the unentailed lands. He merely says, in article 14 of his petition, that “if the said residue had been applied in the purchase of lands settled on the same series of heirs he would now have been the heir in possession thereof.”
The destination in the Inverkeithing entail, so far as we have here to deal with it, is in substance a destination to the heirs male of the body of Victor Alexander, the present Earl of Elgin, in the order of seniority, and the heirs male of their bodies respectively not succeeding to the Earldom; whom failing, to the petitioner and the heirs male of his body, &c. The precise words in which I am expressing the destination are not used in the deed; but the import of that destination is obviously what I have now stated. That is to say, the possible male, issue of the Earl are called to the succession before the petitioner and his male issue. Some may think it inexpedient that such a destination should be sanctioned, and that existing individuals should always take to the absolute exclusion of those who never may exist although their future existence is possible. But that is not the law of Scotland as to tailzie succession. It is not to be doubted that the destination here in question is a perfectly lawful destination, and that if even now, pendente lite, a lawful son were to be born to the present Earl of Elgin, that son would at once supersede the petitioner in the enjoyment of the entailed estate. This has been recognised as the law of tailzied succession by solemn and authoritative decisions, extending over a period of nearly two centuries.
The earliest case which it is necessary to notice is that of Bruce v. Melville, 22d February and 24th July 1677, M. 14,880, and 14,890; also reported by Lord Stair, M. 9321. The destination there was to the heirs of the entailer's body in a certain order; which failing, to the second son of the Earl of Rothes; which failing, to the second son of Lord Melville; which failing, to the second son of the Earl of Wemyss, &c. The issue of the entailer's body having failed, and the Earl of Rothes (then the Chancellor) having at the time no second son, the second son of Lord Melville proposed to serve; but “the Lords having considered this dispute, with the bond of tailzie, did find that so long as there is any possibility or hope of a second son of the Lord Chancellor's own body, David Melville could not be served heir as second son of the Lord Melville”—M. 14,395. That case involved also a question whether the rents, maills, and duties did not fall in the meantime to the Crown as bona vacantia; but it was held that the Crown had no right beyond the retoured duties, and that the fruits remained in hæreditate jacente of the last heir, and fell to be managed by a curator bonis datis, who should be accountable to the heirs of tailzie who should thereafter enter.
In the next case, that of Mountstewart v. Mackenzie, November 13, 1707, M. 14,903, Lord Mountstewart, the nearest heir in existence, was allowed to serve although only called to the succession failing a second son of the body of Lady Langton, who was married and had already one son alive. It was strongly argued that “to suspend the nearest heir pro tempore from immediate entering draws a train of inconveniencies and confusion alongst with it more than the Trojan horse had of soldiers in its belly; for how shall vassals be entered, creditors’ diligence proceed, and the estate be administered?” Moved by these and other considerations of inconvenience, it was decided in January 1708, as Fountainhall's Report bears, “That the service should proceed without any more slop. But sundry of the Lords explained themselves that this service would not cut off my Lady Langton's second son when he came to exist; but that he would have good action to compel him to denude in his favours, and his birth would terminate, irritate, and annul the service.”—M. 14,906.
About a year after the date of the service Lady Langton bore a second son, and an action was then brought in his name, and that of his father as his administrator-in-law, for reducing Lord Mount-stewart's service, and obliging him to denude of the estate. The Report bears that at the advising on 13th December 1709, “After long reasoning it came to the stating of the vote, and some were for putting in all the grounds of law whereon the pursuer and defender founded; but it was thought that would embarrass too much, therefore it was
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’ There were subsequent discussions and decisions upon other points, but these did not affect this judgment, which is of great importance, because it not only affirmed the obligation to denude, but expressly decided that Mountstewart's right and title imported a fidei commissum, which was of course inconsistent with his being in the ordinary and proper sense an heir of entail in possession of the estate by virtue of the tailzie.
Next came the case of M'Kinnon v. M'Kinnon, in June 1756 (M. 6566), in which the estate stood settled upon John M'Kinnon younger and the heirs male of his body, whom failing, upon the heirs male of the body of John M'Kinnon elder, whom failing, upon John M'Kinnon of Messinish and the heirs male of his body. John M'Kinnon younger died infeft, without leaving heirs male of his body, and there being at that time no heirs male of the body of John M'Kinnon elder, John M'Kinnon of Messinish served himself heir of provision to John M'Kinnon younger, and entered into possession. Thereafter John M'Kinnon elder had a son, Charles, whose tutors instituted an action against John of Messinish to denude of the estate. The judgment is thus reported—“The Lords found that the pursuer has right to the estate of M'Kinnon from the time of his birth, and that the defender is obliged to denude thereof in his favour.”
Lord Kames, remarking upon this case and the case of Mountstewart, observes, that according to the natural construction of the tailzie, “there is no place for a substitute while there is a nearer in hope, though not existing.” But, according to the feudal law, “a superior is entitled to have a vassal, and if none offer he is entitled to have back his land. Hence it is that, with a view to the superior, and not the point of right, the next heir in existence when the succession opens is entitled to serve. But then he can be considered in no other light than as a fiduciary heir holding the estate for behoof of the nearer heir. Upon the principles of the feudal law he is entitled to the rents for his service while he acts as vassal; but he is not proprietor in any view, so as to have the power of alienation or of contracting debt. For he is in effect but a trustee, and in that character he is bound to surrender the estate to the nearer heir.” M. 6567–8.
Some further valuable information recorded by Lord Kames as to the opinions of the Judges in the Blackwood's case, is to be found in 5 Broun's Supplement, p. 848. Lord Kames there says—“The President, and all the rest of the Lords, were of opinion that Messinish was rightly served, as there was no nearer heir at the time, because the inconveniencies would be very great, both to the superior and the vassal, if the lands were kept in non-entry till the nearer heir should exist.” “But, secundo, as this was only ex necessitate, as soon as the nearer heir existed the fee in the person of the remoter became void and null, because it was only a fiduciary fee, which could last no longer than the existence of the person for whose behoof it was held.”
The subsequent judgment in M'Kinnon v. Macdonald, of 14th February 1765, M. 5279, obviously does not weaken the judgment of 1756, and has never been supposed to do so. Messinish had sold part of the estate called Strath, in 1751,—that is to say, before the former action had been raised, for £7300 sterling, to relieve the estate of family debts,—obviously debts which affected the fee of the estate. In 1758 Charles M'Kinnon, the expectant heir, who had been successful in the former case, brought an action of reduction against Sir James Macdonald, the purchaser of Strath, to set aside the sale, not apparently with the hope of getting rid of the debts, but because, as the report bears, “land in the Isle of Skye came soon after to rise in its value.” The discussion as to the nature and effect of Messinish's service was incidentally renewed, as affecting the title of the purchaser who had acquired from him; and the report by Lord Kames bears, “The plurality of the Judges came into the opinion that the infeftment of Messinish was conditional only. But there was no occasion to give an explicit interlocutor upon that point, for by a great plurality it was found that the sale to Sir James Macdonald, though an extraordinary act of administration, was yet a necessary act to save the family estate from being torn to pieces by the creditors, of which they were satisfied from evidence produced in Court. The only difficulty upon this point was, that to empower Messinish to sell he ought to have obtained a decree of the Court of Session finding the sale necessary. But, with respect to this difficulty,” continues Lord Kames, the reporter, “I suggested that even a sale by a tutor, sine decreto, will not be reduced if it be found advantageous.” His Lordship adds, “Had Messinish applied to this Court for power to sell, the circumstances of the case were such as that he must have obtained it, and equity will not suffer the neglect of this precaution to be laid hold of for voiding the sale, when the pursuer by that neglect is not in dam.no evitando, but in lucro caplando.” Then we have the cases of Grant v. Grant's Trustees, and the Carnock case, Stewart v. Nicolson, both decided on 2d December 1859 ( 22 D., 53 and 72), which bring this doctrine, as in vivida observantia, down to our own time, drawing the distinction between the case of intestacy, where the law alone rules, and the case of tailzied succession, where the will of the testator is the governing principle, and falls to be followed as nearly as circumstances will permit.
In the case of Grant the Judges, with the exception of Lord Curriehill, were of opinion that it was fixed by the authorities that a father who had succeeded to his son ab intestato could not be called upon to denude in favour of his own later born issue. But, as Lord Ivory observed (p. 64), “It is different in various respects as to tailzied succession.” “But the reason is apparent. The fee in tailzied succession is taken, or rather given, under a condition, because the fee cannot be taken in any proper or absolute sense. At common law the fee is absolute from the instant of succession. In
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Lord Curriehill, so far from differing from Lord Ivory as to the rule in tailzied succession, was of opinion that the same rule applied to intestate succession, observing (p. 66 bot. and 67 top), that he knew of no case in which the remoter heir had been “found to be entitled to enter himself heir to such defunct otherwise than on the implied condition that the rights of the nearest heir in spe are saved entire, and are to be given effect to in the event of his coming into existence.” And he cited the three cases of Bruce v. Melville, Mountstewart and M'Kinnon, as supporting this opinion. In common with the Lord President, I did not in Grant's case enter into the question what would be the rule in tailzied succession, contenting myself with holding that there was no obligation on a father to denude in favour of his child subsequently born in a case of intestate succession such as there occurred.
The circumstances of the case of Carnock, decided on the same day, were of a complicated description, and raised a variety of questions. But so far as we are here concerned with the case, there is no complication. The question is sufficiently brought out by stating the facts thus:—In 1836 Michael R. S. Stewart (who had assumed the name of Nicolson), having forfeited the estate of Carnock, the succession opened to the heir male of his body; but having then no such heir male, his immediate younger brother, Mr John A. Stewart, obtained possession of the estate, and assumed the name of Nicolson. The entail had not been recorded, and on the strength of that fact Mr John A. Stewart Nicolson sold the estate, in August 1851, to Sir Michael Shaw Stewart for £50,000, under the usual condition of its being found that he could give a good title to the purchaser. The seller had made up a title in May 1851; but when that title came to be reduced by one of the judgments which we ultimately pronounced on 2d December 1859, the result was that John Alexander Stewart Nicolson had at the best possessed all along upon apparency merely. The actions of reduction, declarator, and suspension brought to try the validity of the title had come into Court in September and October 1851; and while these actions were still in dependence a son was born to Sir Michael Shaw Stewart in 1854; and for this son appearance was made in the action in the character of heir male of the body of the heir of the investiture; in which capacity, with concurrence of his tutor ad litem, he objected to the sale made by the remoter heir in possession. The Court, on 2d December 1859 ( inter alia), sustained the defences for the pupil and his tutor ad litem, assoilzied the whole defenders from the conclusions of the summons of declarator, and decerned.
It will not fail to be observed that in the Blackwood's case the sale had taken place by an onerous and concluded transaction, at a time when the seller was the nearest heir in existence. The sale was in August 1851, and the nearer heir was born in 1854. The purchaser was therefore entitled to plead that, as in a question with him, the state of matters to be looked to was their state in 1851 and not in 1854. Accordingly, it will be seen that all the Judges gave their opinions upon the footing that the question before them, so far as regarded the validity of the sale, was whether it could be effectually made by a remoter heir when a nearer heir was in spe. If the sale had been made after the nearer heir had been born, there would, I presume, have been no room for argument about it.
The substance of the Lord President's opinion, so far as it bears upon the matter now referred to, was that in the case of tailzied succession, supposing the question had been open, the argument would have been strong for the distinction, recognised in Blackwood's case, between intestate and tailzied succession, and for holding that in the latter case, by the will of the maker of the deed, the party taking while a nearer heir was in spe took only a conditional and limited interest in the estate, and could do nothing inconsistent with the course of succession, and that this had been affirmed by repeated decisions. “In this view,” said his Lordship, “it is unnecessary to go into any farther question as to the interests of Mr Nicolson in the estate; for the conditions to which I have alluded, being a limiting quality of his right, he had no power to sell.” He then went on to say that he saw no reason to doubt the reality of the sale, but that the purchaser and seller must both be assumed to have been cognisant of the conditions under which the estate was held; “and if under these conditions it was held as a trust for the benefit of subsequent heirs, I think it was incompetent for Mr Nicolson to have disposed of the estate, and equally incompetent for Sir Michael Stewart, in the knowledge of that, to have acquired it.”
Lord Ivory went over all the authorities, and delivered a full opinion upon the subject: but it will be sufficient to quote from the concluding portion of that opinion, where he says, “It seems to me clear therefore, both on principle and authority, that a remoter heir, taking under the conditions of an entail, takes not as absolute fiar, but takes with a limited and conditional right. He takes as quasi fiduciary (though I think that is not a proper expression) for all other heirs, with certain rights as to rents pending his possession, as to which we have no question here. But he takes rather as representing the nearer heir in the first instance, and others, including himself, in their turn after him, than as one whose entry is either to interrupt or defeat the express substitution of the entail. That goes far to solve the question of his rights while he is in possession; whatever may be the remedies introduced in particular cases by the Court, that reduces the party in possession to an administrator in place of the true proprietor. If so, he cannot sell or exercise any of the rights of property in regard to the estate; and his disability in this respect is one which is necessarily to be read on the very face of his own investiture; and with reference to those who take from him, they are in the same position as himself,” 22 D., 101.
It appeared to me that, as we were all agreed that the only title made up by John A. Stewart Nicolson, the seller, fell to be reduced, the fact that he never had been in any sense feudally vested in the estate was of itself sufficient to prevent him from being in titulo to sell and convey to a purchaser; and, consequently, I reserved my opinion upon the nature of his title quoad ultra. But it
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It is in vain to represent the question here as being whether the words of the statute are to be given effect to. That is a matter on which there can be no difference of opinion. If the petitioner be in the sense of the statute the heir of entail in possession of the estate by virtue of the tailzie, he is, unquestionably, entitled to do what he proposes to do. But the statute gives no definition of who is to be considered the heir of entail in possession of the estate in virtue of the tailzie. That is left to be ascertained by the ordinary rules and practice of the law of Scotland. We speak loosely of all who are called to the succession, although they have not yet succeeded and never may succeed, as being “the heirs of entail.” But the heir of entail in possession of the estate in virtue of the tailzie is well known to the law as the heir who has come into possession in the order prescribed by the will of the entailer, and who becomes fiar of the estate in all respects except in so far as he is effectually limited by the deed, and who consequently has, quoad ultra, all the rights and powers of a fee simple proprietor. He is the party who can effectually sell and convey the estate to a bona fide purchaser if the entail is not recorded in the register of entails. He is the party who, if feudally vested, could formerly take advantage of any particular flaw in the entail to do the particular thing which the flaw left unprotected, and whose powers in that respect are now, by the statute, more extensive than they were. But if the decisions and opinions I have cited are of any authority at all, the petitioner is not in the position thus described. Although the entail were unrecorded he could not effectually sell and convey the estate. Still less could he gratuitously alter the course of succession. In like manner, although there were a flaw in the fettering clauses of the entail, his feudal title would not enable him to take advantage of that flaw either by a sale or by a deed altering the order of succession. Nor would his position in these respects be improved although the fettering clauses were struck out altogether; for it is not these clauses, but the terms of the destination, which form the paramount obstacle to his putting the £130,000 of personality, or whatever the amount may be, into his pocket, and acquiring equal power of appropriation—which is obviously what is contemplated—over the unentailed and entailed heritable estates. The petitioner is not in possession of the estate in virtue of the tailzie, which in existing circumstances ex facie excludes him, but ex necessitate, as the Judges in all the cases express it—that is, for reasons of expediency and convenience so strong as to be held to amount to a legal necessity;—and it follows, as they further observe, that the advantages thus accorded to him are not to be carried one step beyond that necessity.
The heir of entail in possession of the estate by virtue of the tailzie is entitled, if he incurs no forfeiture, to enjoy the estate till his death. The petitioner's enjoyment of the estate, on the contrary, may be terminated at any period of his life without any forfeiture. If a nearer heir should be born, the petitioner's enjoyment of the estate would terminate, not because his right and title to the estate by virtue of the tailzie had been forfeited or resolved,—for he never had such right or title,—but because the necessity which gave him that enjoyment had itself terminated. As was expressly affirmed by the judgment in the Mountstewart case, the infeftment of a remoter heir in the petitioner's position, imports a fidei commissum merely, or, as the Judges expressed it in M'Kinnon's case, he is “a fiduciary heir holding the estate for the nearer heir,” and “in effect but a trustee, although,” upon the principle of the feudal law, “he is entitled to the rents for his service while he acts as vassal.” These views as to the position of the remoter heir were substantially adopted and repeated by the three Judges whose opinions I have quoted from Grant's case and the Carnock case. The Lord President's view in the Carnock case was that the estate “was held as a trust for the benefit of subsequent heirs.” Lord Ivory in Grant's case expressed a similar view by saying the remoter heir “is only admitted ex necessitate in order to fulfil some feudal and other considerations,”—and in the Carnock case by saying “he takes as quasi fiduciary for all the other heirs, with certain rights as to rents, pending his possession,” and “that reduces the party in possession to an administrator in place of the true proprietor.” Lord Curriehill in the Carnock case, dealing with certain objections to the sale which, in common with the other Judges, he held not to be well founded, went on to say—“The other objection to that sale is, that the right to the estate which was vested in Mr Nicolson, the seller, was only a conditional fee, and that the sale was made in contravention of that condition.” He then stated the facts of the case, and referred back to his opinion in Grant's case as explanatory of the grounds on which he held that a remoter heir, whether in fee simple or tailzied succession, could not in any way defeat the legal right of the nearer heir in spe; and after pointing out the terms of the destination as these appeared on the face of the title deeds, he added—“This express
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It is of little moment to suggest, by way of objection, that none of the terms used by the Judges to designate the peculiar position of the remoter heir in the cases referred to can be said to express that position with full and technical accuracy. The Judges who used the terms “ fidei commissum,” “trustee,” “fiduciary heir,” “ locum tenens,” and so on, themselves admitted this. We have not always a technical term which expresses all that is peculiar in the position of a party and nothing more. But the peculiarity is not the less real because we can only express it by analogies or in round-about language, in place of by a single word or phrase of technical import. The material thing is, that a remoter heir in the petitioner's position has not the characteristics either of right, title, or possession, which distinguish an heir of entail, properly so called, in possession of the entailed estate by virtue of the tailzie.
It was said in argument that the question at issue turned upon whether the condition as to the birth of a nearer heir was to be regarded as resolutive or suspensive merely. I have already sufficiently indicated my reasons for holding that there is nothing resolutive about it. I have no objections to its being said that there was a suspensive condition involved, except that this is only true in a partial and very limited sense, and consequently the language may be apt to be misunderstood. The tailzie really contains no condition, either suspensive or resolutive, applicable to the petitioner's position. The estate is not destined to him, either under conditions or without conditions, while there is a nearer heir in spe. The estate is destined, and lawfully destined, as I have already pointed out, to the heir in spe, and it is only failing such heir that there is any destination to the petitioner at all. It may be that if the existence of a nearer heir becomes impossible, the title the petitioner has expede may, with or without the aid of some declaratory decree, be converted from a trust title into an absolute title, so as to serve the one purpose after it has served the other. The latent nature of the trust may facilitate that result, and in that sense the trust may be said to be suspensive of the title which it is possible the petitioner may ultimately come to have. That, however, is a mere question of form and procedure, which does not touch closely the present question.
A remark of mine, in reserving my opinion in the Carnock case, to the effect that there might perhaps be room, even in a tailzied destination, for introducing the principle of Grant's case where the general law of succession had to be resorted to in order to discover who was heir under that destination, gave rise to a supplementary and very able discussion, to which I listened with much satisfaction and benefit. The result was, however, to satisfy me that, although the tailzied succession may for a time run parallel with the legal succession, it is still the will of the entailer which regulates the order of succession—that where this comes to be otherwise the tailzie is at an end—and that, consequently, there never can be room in a tailzied succession for introducing and applying the law of intestate succession which regulated Grant's case.
It occurred to me for consideration at an early stage of this case, whether the petitioner might not by an instrument of disentail strike off the tailzied fetters, so that the entail should be no longer what we term a strict entail, leaving the simple destination which forms the petitioner's difficulty intact. But I am satisfied that the petitioner is at present no more in titulo to strike off the fetters than he is to acquire the estate to himself. Nor do I see how the one result could be disjoined from the other. The petitioner claims to put the personality in his pocket—to acquire the residuary heritable estate in fee simple, and to acquire the tailzied estate also in fee simple, which seems to me to imply the evacuation, or the right to evacuate, all the substitutions, and to appropriate the whole estate to his own uses and purposes.
I have only further to observe, that if I had been disposed to take a different view of the petitioner's position, I should have felt great embarrassment from the fact that the only contradictor in the field has nothing at all to do with the tailzied estate, the proposed disentail of which is made the lever on which the whole petition turns. How even the personality is held as between the respondent Mr Hope Johnstone and the Accountant-General in Chancery has not been explained. We know from former law-suits that Lady Baird Preston, as administrator under letters of administration from the Prerogative Court of Canterbury, succeeded, by judgment of the House of Lords, in withholding the personality in England from the management of the trustees appointed by this Court, with consent of the beneficiaries, to act under Sir Robert's trust-deed and settlement, of whom Mr Hope Johnstone is the survivor— Preston v. Melville, 29th March 1841, 2 Robinson, 88. The whole estate under administration in England was then thrown direct into Chancery, and how and when, if at all, it came to be administered by Mr Hope Johnstone, so as to entitle him to represent it, is a matter upon which we have no information. In no point of view is it easy to see how any judgment of your Lordships granting the prayer of this petition can be res judicata against the heir in spe, or bar him, if he comes into existence, from challenging that judgment and trying the very question now proposed to be decided.
Upon that question itself, however, and apart from these latter difficulties, the opinion I have formed upon the argument submitted to us differs from that of the Lord Ordinary, whose interlocutor I think should be recalled, and the petition refused.
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but not entitled to use this Act of Parliament for correcting statutory hardships so as to defeat the common law of the land with regard to that matter of ordinary succession under the entail.
We are dealing with a petition presented under the Entail Acts, 11 and 12 Vict. c. 36, and 16 and 17 Vict. c. 94, and relative Acts, by the Honourable Mr Bruce; and the question is, whether he is an heir of entail in possession of the estate of Spencerfield and others in virtue of the entail quoted in the petition.
The aspect in which such a question is presented is very different from what it would have been prior to these recent statutes. According to the older law of Scotland, the creation by deed of entail of rights in favour of parties unborn, even for several generations, was not only recognised as legal, but was according to the intent and policy of the law. But since 1848 the creation by protected substitution of rights in favour of parties unborn is not recognised as according to the policy of the law. It is rather the policy of the law to prevent it. Undoubtedly the present law of entail is intended to afford, and does afford, facilities to heirs of entail in possession to escape from the fetters which protect ulterior substitutions.
This petitioner possesses all the requisites which, according to the statute, entitle him to disentail. He was born in 1851,—that is after 1848: he is of full age; he is in possession of the estates; his title of possession is the deed of entail. The only remaining question is, Can he be considered as an heir of entail within the meaning of the statute? The right to apply for authority to disentail, and the right to disentail under such authority, is given to “any heir of entail” having the requisites already mentioned.
I am of opinion that the petitioner is an heir of entail according to the meaning of the statute. The only conditions which are, or can be, urged as qualifying his right, are, in my opinion, resolutive and not suspensive conditions. There are two such conditions. The one is, that if he succeeds to the Earldom of Elgin he must cease to possess these estates, and must devolve them on the next heir under the destination. Now, it has been admitted in the argument for the respondents, and nothing to the contrary has fallen from any of your Lordships, that this condition in regard to succession to the Earldom is resolutive and not suspensive, and that it does not destroy or impair the right of the petitioner, in the meantime, to possess as heir of entail. It is as heir of entail that he has entered into possession. It is as heir of entail that he is put under obligation to surrender possession; and that he must devolve the estate on the next heir, that is, the heir of entail next to himself, for he is the present heir of entail. So much for the first condition. If there were none other the petitioner would succeed.
The second condition is said to be that if hereafter the Earl of Elgin should marry and have a son, that son would be entitled to the estates, and the petitioner would be bound to denude. I am not quite satisfied that this proposition is well-founded, for the terms of the deed must be kept in view,
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It was admitted by Lord Deas, if I understood him aright, that unless the petitioner is heir of entail to the effect of being entitled to disentail and obtain the estate in fee-simple, he cannot escape from the fetters; and we are called on to say that he must remain bound by these fetters. Now, I cannot say so. I am of opinion that an heir possessing an entailed estate by virtue of the entail—an heir who was born after 1848, and who is of full age—cannot, according to the present law of entail, be held to be permanently bound by the fetters, and unable to relieve himself. It is the intent and policy of the present law of entail to enable him to get free from these fetters. Now, it is to be observed, that in this case the fetters would be permanently fixed on the estate and on the heirs. It may be many long years, perhaps even a century, before any heir of entail can possess these estates who is not subject to a resolutive condition, and I do not think that such permanency of fetters is according to the terms or the meaning or the policy of the existing law. Possible contingencies of succession to heirs unborn are not protected or favoured by the present law of entail, and this petitioner is in the exercise of a privilege conferred by statute.
Without detaining your Lordships longer, I have merely to express my concurrence in the opinion of the Lord President and Lord Benholme, and in the judgment of the Lord Ordinary.
In the view which I take of the case, the whole questions turn upon the true meaning and effect of the provisions in the Entail Amendment Act of 1848, and the relative statutes following thereon. The present petition is presented and insisted in solely in virtue of these statutes; and the question is, Do these statutes confer upon the present petitioner the right which he claims, to disentail the lands of Spencerfield and others, and to obtain payment of the trust-funds which the late Sir Robert Preston directed to be laid out in the purchase of other lands to be entailed in the same terms as the lands of Spencerfield?
The right to disentail or to obtain payment of money destined for the purchase of entailed estates, is a right conferred by statute, in certain cases fixed and defined by the statute. It is in no case a question for the discretion of the Court the Court have no discretion in the matter. They have simply to decide in each case whether the petitioner does or does not possess the statutory right—that is, whether he occupies the position and possesses the qualifications which the statute requires to combine in the person of him on whom it confers the right to disentail. If the present petitioner has the requisite qualifications, then he has an absolute right to disentail the lands and to uplift the money; and the Court, without regard to consequences, must give effect to the statute.
The right to disentail lands already entailed, and the right to receive or uplift moneys destined for the purchase of lands to be entailed, are parallel rights, and although they are conferred by different clauses of the statute, the same rules and the same arguments apply to both. The question regarding date having been settled by the case of Black, it will be sufficient to consider the petitioner's right to disentail the lands of Spencerfield. I do not think it is possible to dispose of the two branches of the petition in different ways.
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The second section of the Entail Amendment Act of 1848 confers the right to disentail in the following words:—“Where any estate in Scotland is held by virtue of any tailzie dated prior to 1st August 1848, it shall be lawful for any (1) heir of entail (2) born on or after the said 1st August (3) being of full age and (4) in possession of such entailed estate (5) by virtue of such tailzie, to acquire such estate in whole or in part in fee simple, by applying to the Court of Session for authority,”—and so on. For the sake of clearness, I number the requisites which the statute requires to meet in him on whom it confers the right to disentail. They are five in number, as applicable to the case of an entail dated prior to 1st August 1848, and of course this applies to the entail of Spencerfield, which is dated 3d November 1832. The five requisites are, the petitioner must be—(1) heir of entail; (2) born on or after 1st August 1848; (3) of full age; (4) in possession of such entailed estate; and (5) in possession by virtue of the tailzie. If these five requisites combine, then the petitioner has the right to disentail under the statute, and that whatever the effect of such disentail may be. The effect of the disentail may in some cases be attended with doubt, and possibly there may be many questions as to what the effect of the disentail really is. None of these questions however can be decided under the present petition, though of course it is quite necessary to look to the consequences of the decision now to be given. The sole question under the present petition seems to be, Does the petitioner possess the five qualities abovementioned which the Entail Amendment Act requires? I am humbly of opinion that he does.
I think it was not disputed at the bar—at all events, I think it cannot be successfully disputed or reasonably doubted—that the petitioner possesses what I have numbered as the second, third, and fourth requisites under the statute. He was born after 1st August 1848; he is of full age; and he is in actual and undisputed possession of the entailed estate. The only points upon which any doubt can be reasonably raised are in reference to the first and fifth requisites. Is the petitioner, in the sense of the Entail Amendment Act, an “heir of entail,” and is he, in the sense of the statute, “in possession of such entailed estate by virtue of the tailzie?” Each of these points requires and deserves the fullest and most careful consideration.
I am of opinion that the petitioner is, in the sense of the Entail Amendment Act, an “heir of entail.”
No doubt the petitioner is not, and was not at the date of his service, the nearest possible heir of entail; for if the petitioner's brother, the present Earl of Elgin, had a son, such son (so long as he shall not succeed to and be in right of the title of Earl of Elgin) would be a nearer heir than the petitioner under the existing branch of the destination. I am of opinion, however, that the circumstance that there may be a nearer possible heir than the petitioner does not prevent the petitioner from being “heir of entail,” in terms of the Entail Amendment Act.
The Act does not say that the disentailer shall be the nearest possible heir. It does not even say that he shall be the nearest heir. It merely requires that he shall be an heir of entail, or, in the very words of the statute, “any heir of entail,”—adding as a farther and restricting requisite that he shall be in possession of the entailed estate by virtue of the tailzie.
Though not the nearest possible heir, the petitioner is undoubtedly an heir of entail. He has all the characters of such an heir. He is the second son of the late Honourable James Bruce, the eldest son, the present Earl of Elgin, being excluded by the title. The petitioner is served as heir male of the said James Bruce, and as present nearest and lawful heir of tailzie to the last vest heir the late Charles Dashwood Bruce, and he has completed his title as such. In virtue of this service and title the petitioner is in possession of the entailed estate, and admittedly no one else has or can have at present any title to possess. If the petitioner were to die, his elder brother still having no issue, the petitioner's own son, or the next heir of tailzie, would serve to the petitioner as to the heir last vest and seised in the lands; and if the present Earl of Elgin were to die without issue, the petitioner on becoming Earl of Elgin would be bound to demit in favour of the heir next in succession; but he would be so bound simply in terms of the entail, which provides that “whenever the heirs hereby called to the succession of my said estates shall come to inherit the title and represent the family and Earldom of Elgin, they shall be bound to demit the possession of my said estates in favour of the heir next in succession so that it is only because the petitioner is heir of entail called to the succession that he will be bound to demit on becoming Earl of Elgin.
There is almost no attribute of an heir of entail under the tailzie which the petitioner does not possess,—nearness of blood, service, infeftment, possession, capacity to transmit, obligation to demit in case of succeeding to the Earldom, and liability to forfeit for contravening the provisions of the entail. The petitioner is entitled as heir of tailzie to uplift and retain the rents without any liability to account.
The argument for the respondent, however, is, that the petitioner would be bound to denude in the event of a nearer heir coming into existence—that is, in the event of the present Earl of Elgin having a son; and it was urged with great force that this circumstance alone is sufficient to deprive the petitioner of the character of heir of entail in the sense of the Entail Amendment Act. The argument is, that an heir of entail who is so, or who may be so only temporarily, and who holds the estate only until a nearer heir is born, is not the heir of entail to whom the Entail Amendment Act gives the all-important power of putting an end to the entail altogether. It is impossible not to feel the weight of this view; and it is not without great hesitation that I have ultimately come to think that, notwithstanding this all-important speciality in the petitioner's position, he is still, in the sense of the Entail Acts, an heir of entail.
I am willing to assume, and I do assume in the present case, that on the birth of a nearer heir—that is on the birth of a son of the Earl of Elgin—the petitioner would be obliged to denude in his favour, and it is on this assumption that my opinion proceeds. I may say, in passing, however, that I am not quite satisfied that in the event of a nearer heir being born the petitioner would be bound to denude. I do not think it necessary to decide this question in the present case, and I do not mean to do so. It appears to me always to be a question of the intention of the maker of the
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Now it humbly appears to me that the circumstance that in certain cases an heir of entail will be bound to divest or denude himself of the estate, does not deprive him of the character and privileges of heir of entail so long as the event has not occurred. No better illustration of this can be given than that which arises in the present case. Admittedly the petitioner must denude if he should become Earl of Elgin, but it has not been maintained by the respondent—I do not think it could be successfully maintained—that this circumstance alone would prevent the petitioner from disentailing. I do not think there is any distinction in principle between the contingent and uncertain event of the petitioner succeeding to the earldom, and the other event, equally contingent and uncertain, of the present Earl of Elgin having a son. If the first possible contingency would not prevent the disentail, why should the second? The events are almost equally possible, and neither of them depends in the least upon the will of the petitioner.
This leads me to the consideration of the question, whether the right of the petitioner as heir of entail served and in possession is suspensive or resolutive, that is, whether his right is suspended so long as there is a possibility of a nearer heir, or whether his right is only resolutive and liable to be terminated on the birth of a nearer heir. This is probably just another way of stating the difficulty, but it assists in arriving at a solution of the case. Now, it appears to me that the petitioner's right as heir of entail is not suspensive but merely resolutive, assuming as I do the obligation to denude when a nearer heir comes into existence. The petitioner's service is unconditional, and his title is absolute. There may never be a nearer heir, and no new title will be required when the existence of a nearer heir becomes impossible. In short, the possible emergence of a nearer heir seems to belong to the same category as the possible accession of the petitioner to the Earldom of Elgin. Either event would resolve the petitioner's right, but the mere possibility of these events does not suspend it.
To hold that the petitioner's right is suspended would really be to create a trust of indefinite and unlimited duration, and of the most anomalous description. It might very easily happen that there should be a succession of Earls of Elgin either unmarried or without male issue, and this might last a century or more. It would be very strong to hold that during all such period the separate entailed estate of Spencerfield can be only held in trusl, and that only trust acts of administration were competent in regard to it. Certainly nothing could be more against the spirit of the Entail Amendment Act than to prevent the disentail of Spencerfield, for it may be one or two centuries, although all the time the beneficial enjoyment of the estates was in heirs of entail of full age and mi juris.
The case of Mountstewart, which, altering the former practice, allowed the nearest heir of entai to serve and complete his title notwithstanding the possibility of a nearer heir, seems to me, in connection with the Entail Amendment Act, to settle the present question, for it fixes that the possibility of a nearer heir does not prevent the petitioner from being “heir of entail,” and the right to disentail is given to any “heir of entail” who has the other statutory requisites. None of the later decisions seem to me to decide the present question, for none of them had any reference to the pure statutory right of disentailing. These decisions had no reference to the Entail Amendment Act, and there was no occasion to consider how far a person in the position of the petitioner was entitled to disentail under these statutes.
I may add, in passing, although I think the matter does not affect the decision of the present case, that as I read the Entail Amendment Act the mere disentailing and recording an instrument of disentail does not per se alter the destination of the lands. The disentail seems to me merely to remove or strike off the fetters, but it leaves the destination as a simple destination untouched. The prohibitions, the irritant and resolutive clauses, are at an end, but the mere act of disentail as such goes no further. If this be so, it in one view strengthens the argument that the Entail Amendment Act intended to give the power to disentail to an heir in the position of the petitioner. It merely enables the heir of entail in possession to convert a fettered destination into a simple one, but no further or otherwise enlarges his right. After the disentail he can do all that he could have done under an unfettered destination, but nothing else. I notice this because it is right to consider all consequences, but I think we are bound simply to allow the disentail, and that we cannot decide any other question in this case.
The only other point on which doubt has been thrown is whether the petitioner is in possession of the estate “by virtue of the tailzie.” This, of course, is a necessary and statutory requisite. The suggestion is that the petitioner is in possession, not by virtue of the tailzie under which he is not the nearest possible heir, but in virtue of a rule of law introduced by the decision in the Blackwood's case, by which rule of law the petitioner, although he has no present right to the lands, is from considerations of expediency allowed their interim enjoyment as a quasi fiduciary. I cannot take this view. The petitioner is in possession by virtue of his service, and the service proceeded under the tailzie. The petitioner was not put in possession by any special act of the Court, like a judicial factor or interim nominee. He took possession as heir of entail and in no other character, and he did so as a matter of absolute right. There was no rule of law called into play excepting the rule of law that the nearest heir of entail is entitled to serve and to possess, and it is just upon such heir served and in possession that the Entail Amendment Act confers the right and power to disentail.
I am therefore of opinion that the petitioner possesses, under the Entail Amendment Act, the right to disentail the lands and funds in question, and that the prayer of the petition should be granted.
The Court pronounced the following interlocutor:—
“The Lords, having resumed consideration of this cause, with the assistance of three
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Judges—Lords Benholme and Neaves, of the Second Division, and Lord Gifford (Ordinary)—and heard counsel on the reclaiming note for John James Hope Johnstone, Esq. of Annandale, Sir Robert Preston's trustee, against Lord Shand's interlocutor of 10th June 1873: After consultation with the said other Judges, and in conformity with the opinion of a majority of the seven Judges present at the said hearing, adhere to the interlocutor reclaimed against, and refuse the reclaiming note, and remit to the junior Lord Ordinary to proceed further.”
Counsel for Petitioner— Solicitor-General (Clark) and Mackay. Agents— Murray & Falconer, W.S.
Counsel for Respondent—Lord Advocate ( Young) and Balfour. Agents— Dundas & Wilson, C.S.
I., clerk.