Scottish Court of Session Decisions

This was a petition presented to the Court under the Rutherfurd Act, for authority to disentail the estate of Fearn.

The Lord Ordinary remitted to Mr W. R. Kermack, W.S., to “inquire into the circumstances set forth in the petition, to examine whether the provisions of the statutes and Acts of Sederunt have been complied with, and to report.”

Mr Kermack reported as follows:—“The petitioners in this application apply for authority to disentail the estate of Fearn, under the provisions of the Rutherfurd Act, with the necessary consents, under somewhat peculiar circumstances. The former proprietor of the estate, Thomas Binny, Esquire of Maulesden and Fearn, settled the property under a contract of marriage, which was entered into between his daughter (the first petitioner) and the late Honourable William Maule Maule in terms of the destination therein set forth. The destination which was contained in this contract was granted to the said Thomas Binny himself in liferent during all the days of his lifetime, and after his death in favour of the said Mrs Elizabeth Binny or Maule and the said William Maule Maule, then intended spouses, and the longest liver of them, also in liferent, but subject to the restrictions, limitations, provisions, and declarations expressed in the said contract, and in favour of the heirs-male of the said intended marriage in fee, whom failing, in favour of the heirs female of the said intended marriage, whom failing in favour of the other heirs of entail therein specified, the eldest heir-female and the descendants of her body' excluding heirs — portioners and succeeding always without division through the whole course of the female succession. The said Thomas Binny and the said William Maule Maule are both now dead, and in consequence of the failure of male issue of the said marriage, the petitioner Miss Elizabeth Patricia Maule, as the eldest daughter of the ‘marriage, has come to occupy the position of the heir of the marriage entitled to succeed to the said estate. The question, however, appears to have been raised, whether the mother or she is the person who is entitled at present to be considered as the heir of entail in possession of the said estate under the terms of the said deed of entail. This doubt, the reporter understands, is founded on the circumstance that the destination to Mrs Maule in liferent and her children in fee is not restricted by the word “allenarly,” and that thus, under the numerous decisions following on the case of Frog's Creditors v. Bis Children (Nov. 25, 1735, Mor. 4262) it may be held that the fee of the estate is vested in the parent and not in the children. If this were so, the Honourable Mrs Maule would be the heir of entail in possession; and, in that view, the consent of the three next heirs of entail, being her three daughters, including the petitioner Miss Elizabeth Patricia Maule, is all that is required for the purpose of effecting the disentail. The reporter does not consider himself called on to consider whether such a construction of the destination in favour of Mrs Maule would be(well founded or not; but in perusing the contract of marriage which contains the entailed settlement, it has occurred to him that it comprehends many clauses which might be held as limiting Mrs Maule's right to that of a liferent as distinctly as if the word ‘allenarly’ had been employed in connection with the constitution of her right.

“This being the one view on which the disentail is sought to be accomplished, the other is, that the right of Mrs Maule being dealt with as a liferent only, the fee should be held as vested in her eldest daughter, the petitioner, as entitled thereto under the terms of the destination in the deed of entail. Under the view now suggested there can be no doubt that the said Elizabeth Patricia Maule is the person entitled to the fee of the estate, but there may be some question whether she is the heir of entail in possession thereof in the sense of the Rutherfurd Act, to the effect of enabling her to disentail the estate. So long as her mother is alive it is clear that Miss Maule can have no beneficial interest in the estate; but under the decisions which have been pronounced on this subject, that circumstance alone would not be deemed sufficient to deprive her of the character of heir of entail in possession, as it has been expressly decided that the existence of a liferent which exhausts the rental of an entailed estate will not prevent the party in the right of the fee from exercising all the powers conferred by statute on an heir of entail in possession. The doubt, however, which presents itself in the present case is, that assuming the liferent of the Honourable Mrs Maule to be restricted in the same way as if it had been a conveyance to her in liferent for her liferent use allenarly and to her children in fee, a fiduciary fee would then have been vested in her for behoof of such children; and this fiduciary fee may be held still to subsist in her notwithstanding the existence of a child or children entitled to take up the fee of the estate provided to them by the settlement. This position of matters raises the somewhat difficult question, whether Miss Elizabeth Patricia Maule holds such a right of fee as entitles her to be regarded as an heir of entail in possession. There is considerable authority for holding that under a destination in liferent for liferent allenarly and to children nascituri in fee,

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the fee is in the parent until children exist, and then the fee is with them. The case of Maxwell v. Logan, 20th December 1836, 15 S. 291, affirmed M'L. and Bobn's. Appeals, 790, is a strong authority to the same effect. The question in that case was, whether, under a destination in a deed of entail to a mother in liferent only, and to her second son and the heirs of his body, the son was to be dealt with as institute under the entail, so as to be free from fetters imposed on the mother ‘and the heirs of entail.’ The Lord Ordinary (Corehouse), whose judgment was adhered to, held that the son was clearly institute under the entail; and he stated in his note that ‘the fee vested in him ipso jure as soon as he came into existence as institute.” On the other hand, the practice in such cases, following the judgment in the case of Dundas, 23d January 1823, 2 S. 145, is for the party taking up the fee to make up his title by serving as heir of provision to the fiduciary fiar under the destination in the deed of conveyance; and Professor Bell, in remarking on the case of Maxwell v. Logan, says—‘I do not hold that case as settling for feudal purposes. There was no fiduciary fee in the liferenter. It settled that, with respect to the operation of the fetters of an entail, the party first called as the real fiar was not an heir; but I do not think it did more. I believe the practice in similar cases is to serve the real fiar heir of tailzie and provision to the fiduciary fiar. In the case of Ferguson v. Ferguson, 19th March 1875, S. C. ii. 633, it was observed by Lord Deas that ‘a question of feudal rights can never be safely determined without considering how, according to established practice, a feudal title would fall to be made up;’ and according to ordinary practice it would rather appear that Miss Maule would require to make up her title by serving herself heir of tailzie and provision to her mother. It is stated in the petition that there were two sons of the marriage, who are now dead, and if the view should be adopted that the fee vested immediately on the birth of a child capable of taking it under the destination, the fee of the estate of Fearn must be held to have vested in the eldest of these sons, and the title of Miss Maule would be completed by service to her eldest brother. There is much difficulty in coming to the conclusion that this would be a proper or satisfactory method of completing the title. In this position of matters, it appears to be a question of considerable difficulty whether Miss Maule can be regarded as heir of entail in possession of the estate. It is on the footing that, in the view of her mother's right being restricted to a liferent, she is entitled to deal with the estate as heir of entail in possession, that the petition is presented; and if there is any serious doubt upon this point, the Court may not be disposed to proceed with the petition without having the rights of parties ascertained in proper judicial proceedings instituted for that purpose. The theory of the application is, as has been stated, that either the one or the other of the petitioners is to be deemed heir of entail in possession, and to be entitled, with the necessary consents, to disentail the estate; and upon that theory it is proposed that a joint instrument of disentail should be executed by the said parties, following on a deed of consent executed by Miss Maule and her three sisters. In this way, in the event of the Honourable Mrs Maule being held to be heir in possession, Miss Maule and her two eldest sisters would supply the necessary consents; while in the case of Miss Maule being held to be heir in possession, the consents of her three sisters would be applicable to that position of matters. The reporter is not aware of any case of a similar description, but he is not able to see any objection to the course proposed to be followed. If the supposition be correct that Mrs Maule is the party entitled to the character of heir of entail in possession, the instrument of disentail will be well executed by her; while, if that character is possessed by Miss Maule, the instrument will be equally effectual as a disentailing deed. On either assumption, the instrument of disentail must necessarily be executed by the proper party, and the necessary consents must have been interponed thereto. The circumstance that it is uncertain which of the two petitioners is to be held as having effectually executed the instrument of disentail seems to be immaterial so long as it can be assumed that one or other of them must necessarily have done so.”

The Lord Ordinary reported the case to the First Division of the Court, with the following note:—

This case is important and difficult. If there had been opposition, the Lord Ordinary would have decided it. But as no person has appeared to oppose it, he thinks it right to report.

The estate of Feam belonged to Mr Binny, and in the contract of marriage between his daughter and Mr Maule it was settled by a strict entail. The destination is in favour of Mr Binny in liferent and Mr and Mrs Maule and the survivor in liferent (but subject to the restrictions specified in the deed of entail) and to the heirs-male of the marriage of Mr and Mrs Maule in fee, whom failing, to the heirs-female of that marriage, whom failing, to the heirs-male of any subsequent marriage of Mrs Maule, whom failing, to the heirs-female of such subsequent marriage; whom failing, to a series of other heirs.

The marriage was dissolved by the death of Mr Maule. He was survived by four daughters. The petition is presented by Mrs Maule and her' eldest daughter. It proceeds on the footing that one or other of the petitioners is the heir of entail in possession, and prays that the petitioners may be authorised to record ah instrument of disentail executed by both.

It was not maintained that Mrs Maule was fiar. It is true that in the dispositive clause neither the word ‘allenarly’ nor any equivalent occurs. But the subsequent clauses of the deed seem conclusively to shew that her right is limited to a liferent.

It was urged, however, that Miss Maule was the fiar, and that she was entitled to disentail. Her right of fee, if it exist, is of course subject “to her mother's liferent, and her title is not made up; but in the opinion of the Lord Ordinary neither of these circumstances prevent her from proceeding with the petition if it is otherwise well founded.—See 11 and 12 Vict. c. 36, sec. 42. It is possible that she may be required to complete her title before she is allowed to record the instrument of disentail.

The question is, whether a right of fee emerged in favour of Miss Maule on the dissolution of the marriage, or whether Mrs Maule is

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fiduciary fiar for such of her children as shall on her death be the heir under the destination. The Lord Ordinary is inclined to adopt the former view. He thinks that Miss Maule is, in the sense of the deed, the heir of the marriage, and that her right as such was ascertained on the death of her father.

In the case of Ferguson v. Ferguson, 2 Rettie 633, it was decided that under a destination to A in liferent, for his liferent use allenarly, and the heirs-male of his body in fee, no right of fee could vest during the lifetime of A. The ratio decidendi is, that until the death of A it could not be ascertained who was to be his heir, and that he was necessarily fiduciary fiar for the uncertain heir.

But in Maxwell v. Logan, 15 Sh. 291, and Maclean and Robinson's App. Oases, 790, it was held that when an estate was disponed to a woman in liferent only, and to her second son in fee, the son became fiar as soon as born. Accordingly he obtained during his mother's lifetime a decree of declarator that the fetters of the entail did not apply to him, and that he was entitled to sell and dispose of the estate at pleasure.

Here the disposition is not in favour of a child, but of the heir of the marriage. So long as the marriage subsisted such an heir could not have existed any more than an heir-male of the body. But on the dissolution of the marriage the heir is ascertained just as much as a second or other son, and when this is so the Lord Ordinary thinks a right of fee at once vests in such an heir.

“Some difficulties have been suggested as to the mode of making up the title. It is said that it may be necessary to serve to the fiduciary fiar, and that no such service can be expede until the death of the mother. But if the Lord Ordinary is right, a service was not necessary under the former law to take up or transmit the fee. The heir, when he is ascertained, is in truth a disponee.—See the note of Lord Corehouse in Maxwell, above cited; Douglas, 8 Macph. 374.”

Argued in support of the petition—(1) The destination would certainly in a fee-simple destination make Mrs Maule fiar. The clauses irritant and resolutive, and the prohibitions of the entail, are all directed against her: but in that view the restrictive clause limiting her to a liferent must be ignored; in favour of such a course compare M. voce Provisions of Heirs and Children, App. No. 6— Pollock v. Pollock. (2) If she be merely a fiduciary fiar, her right as such comes to an end so soon as such a fee becomes unnecessary, i.e., so soon as the heir of the marriage can be ascertained. Compare the cases of Ferguson and Maxwell, quoted in Mr Kermack's report. (3) Whether the mother or daughter be fiar, if a joint deed be granted by them it will be sufficient to disentail the estate.

At advising—