Scottish Court of Session Decisions

This was an action of declarator and denuding at the instance of John Alan M'Donald, second surviving son of the late General Sir John M'Donald

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of Dalchosnie and Kinloch Rannoch, against his brother Alastair M'Iain M'Donald of Dalchosnie, colonel in the army, eldest son of the said deceased Sir John M'Donald. The case was the sequel to a previous action of multiplepoinding reported ante, vol. xi. p. 290 and H. L., vol. xii. p. 635.

The summons in the present action concluded for declarator (1) that under and by virtue of a joint-settlement and deed of division made and executed by the late Sir John M'Donald and his wife, dated 18th July 1837, and a relative deed of entail of the lands and estates of Dalchosnie, Loch Garry, and Kinloch Rannoch, in the county of Perth, of the same date, made and executed by the said Sir John M'Donald, the defender was bound to make his election whether he would take, absolutely and unconditionally, the sum of £25,000 sterling allocated to him by the said joint-deed of division, or take the entailed estates subject to the condition of the same being discharged and disencumbered of the said sum of £25,000; that he had elected and taken the said sum of £25,000 absolutely, and had thereby frustrated his father's intention in respect of the settlement of the said estates, and reprobated the the said joint-settlement and deed of entail; that he had forfeited his right therein, and that the lands had fallen, devolved, and accresced, and now belonged to the pursuer as next heir appointed to succeed under the deed of entail; (2) that the defender was bound to cede possession to the pursuer of the said estates, and to flit and remove therefrom, or to make compensation to the pursuer for the loss and damage which he had sustained, or might hereafter sustain, by the defender having reprobated the said deeds; or otherwise that the rents of the said lands should be collected and accumulated during the defender's lifetime in such manner as the Court should appoint, and held for the pursuer and the other heirs of entail, and applied in such manner for their behoof from time to time as the Court might direct; or otherwise for declarator that the right, title, and interest of the defender in the said lands was now extinct, and that the same had fallen, devolved, and accresced, and now belonged to the pursuer as the heir-at-law next after the defender of the said Sir John M'Donald.

An amendment of the summons was allowed to the effect of adding a conclusion for declarator that the defender was bound, as a condition of his retaining possession of the estates of Loch Garry and Kinloch Rannoch, to free and relieve the said lands and estate of and from the burden of the debt of £25,000 and all interest and penal-tries that might have accrued thereon, contained in a bond and disposition in security for £25,000, dated on 13th October 1828, granted by the said Sir John M'Donald in favour of parties named therein; or otherwise, that the defender, by having taken benefit under the said joint-settlement and deed of division and the said relative deed of entail—by his having obtained possession of the lands and estate of Dalchosnie immediately upon his father's death, and by his having taken possession of the estate of Loch Garry and Kinloch Rannoch upon his mother's death—was under obligation and was bound to free and disburden the said estates of Loch Garry and Kinloch Rannoch of the said sum of £25,000 affecting the same, and interest and penalties, and should be ordained to free and relieve the same accordingly, and failing his doing so within a month from the date of decree, or within such time as the Court should appoint, that he should be ordained to cede possession of the said estates of Loch Garry and Kinloch Rannoch to the pursuer, and to flit and remove therefrom.

The facts of the case are fully narrated by the Lord Ordinary in the following Note, appended to his interlocutor assoilzieing the defender:—

“ Note.—In this action the pursuer, John Alan M'Donald, calls upon the defender, Alastair M'Iain M'Donald, his elder brother and heir of entail now in possession of the entailed estates of Loch Garry and Kinloch Rannoch, in Perthshire, to denude of said estates in favour of him (the pursuer), in respect that he was bound to elect between these estates and a provision of £25,000, appointed to him by his father and mother, the late Sir John and Lady M'Donald, under a deed of appointment and division executed unico contextu with the deed of entail, and that he has elected to take the money. The circumstances in which the action has been raised are as follows:—

In 1826 Sir John M'Donald, then Lieutenant-Colonel M'Donald, of Dalchosnie, was married to the now deceased Adriana M'Inroy (afterwards Lady M'Donald), daughter of the deceased James M'Inroy of Lude. By antenuptial contract of marriage entered into between them, dated 8th September 1826, Sir John M'Donald, in contemplation of the marriage, disponed to himself and Lady M'Donald, in conjunct fee and liferent, but for her liferent use allenarly, in case she should survive him, and to the heirs-male of the marriage, whom failing the heirs-male of Sir John's body in any subsequent marriage, whom failing certain other heirs therein specified, all and whole his estate of Dalchosnie, in the county of Perth, reserving nevertheless full power to Sir John to execute a strict entail of the whole or any part of the said estate, providing only that he should in such entail first call to the succession the series of heirs specified in the contract, in the order therein narrated, and thereafter such other heirs as he should think proper; and should noways defeat or injure Lady M'Donald's liferent right. On the other hand, Lady M'Donald conveyed the Whole share and interest of every kind and description in the estate of her father, the said deceased James M'Inroy, to certain trustees, who were to hold the same in trust for the conjunct liferent right and use allenarly of the spouses, and after the death of the spouses to pay over or assign the whole to the child or children to be procreated of the marriage, in such proportions and at such time and under such conditions as Sir John and Lady M'Donald should by any joint deed, or as Lady M'Donald, if the survivor, should by any deed or writing signed by her, direct or appoint; and failing any such direction or appointment, to hold the same after the death of the survivor of the spouses for behoof of the children of the marriage in certain shares and proportions specified in the contract. The shares were to be payable to the sons at the age of twenty-five, and to the daughters at that age or on marriage, but were not in any case to become vested interests until the death of the survivor of the spouses.

It will thus be seen that in virtue of the contract

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the eldest son of the marriage and his male descendants had, subject to his mother's liferent, a right of succession to the estate of Dalchosnie which Sir John M'Donald could not gratuitously defeat, but which he might limit by the fetters of a strict entail. On the other hand, an indefeasible right to the whole of Lady M'Donald's fortune was conferred upon the whole children of the marriage as a class—including the eldest son—the amount to be received by each being subject to appointment by the spouses, and the vesting being postponed till the death of the survivor of the spouses.

Several children were born of the marriage, viz., four sons and three daughters. The defender, Colonel Alastair M'Iain M'Donald, is the eldest son, and the pursuer, John Alan M'Donald, is the second surviving son; the other two sons predeceased their parents. The three daughters are all alive. Sir John M'Donald died on 24th June 1866, and Lady M'Donald on 7th November 1872.

Lady M'Donald's fortune derived from her father's estate amounted to upwards of £50,000, which was received by the marriage-contract trustees for the purposes of the trust. A few years after the marriage Sir John M'Donald purchased two estates, named Loch Garry and Kinloch Rannoch, adjoining Dalchosnie, at the price of £28,000, which, by expenditure or improvements, was increased to £30,000; for the purpose of paying which price he borrowed from the M'Inroy trustees a portion of Lady M'Donald's fortune amounting to £25,000, for which he gave them security in the form of a bond and disposition in security over the two estates so purchased. The securities were afterwards transferred to the marriage-contract trustees. The declared intention of Sir John in making the purchase was that these two estates, along with the family estate of Dalchosnie, should be permanently united as a family estate, and should descend in the first instance to the heirs-male of the marriage. This appears from the narrative of the deed of entail of the three estates executed by Sir John M'Donald on 18th July 1837, which begins by narrating the marriage-contract and the trust-conveyance therein of Lady M'Donald's fortune, and then proceeds as follows:—‘And further, considering that the object of the said trust is to secure the liferent of the said funds to the said Adriana M'Inroy or M'Donald during her life, in the event of her having children, and the succession to the fee of the same to the children, if any, of the said marriage, in such shares and in such manner as we the said spouses, or the said Adriana M'Donald if the survivor, may direct; and that the objects of the said trust may be fully accomplished by the purchase of lands, to be entailed on the eldest son of the said marriage, and such provisions secured to the other children as I, the said John M'Donald and the said Adriana M'Donald, may now or afterwards direct: And further, considering that I, the said John M'Donald, soon after the marriage purchased the two estates of Loch Garry and Kinloch Rannoch, adjoining to Dalchosnie; and it being the desire of me, the said John M'Donald, and of the said Adriana M'Inroy or M'Donald, to settle definitely, onerously, irrevocably, and mutually, the said estates of Dalchosnie, Loch Garry, and Kinloch Rannoch, belonging to me the said John M'Donald, on ourselves and our family, and, failing our heirs-male, so far to alter the destination in the marriage-contract with regard to Dalchosnie as to settle it with the other lands, giving heirs-female of the present marriage a preference and priority to heirs-male of any subsequent marriage; and having of even date herewith, executed a deed of appointment and division of the whole estate belonging to the said Adriana M'Inroy or M'Donald, which deed and appointments therein contained are held as implement on her part of the mutual agreement between us for the settlement of our respective estates: Therefore, in implement on my part of the foresaid mutual agreement, I, the said John M'Donald, bind and oblige myself, my heirs and successors whomsoever, to entail and secure my whole lands and others particularly underwritten in favour of the persons and the substitutes after designed, and to make resignation thereof in due and competent form as effeirs.’ And the deed then proceeds to dispone the three estates of Dalchosnie, Loch Garry, and Kinloch Rannoch, ‘to and in favour of myself and the said Adriana M'Inroy or M'Donald, and to the survivor of us in liferent, and to the heirs aftermentioned in fee, namely, Alastair M'Iain M'Donald, my eldest son, and the heirs-male of his body, whom failing, John Alan M'Donald, my second son, and the heirs-male of his body,’ whom failing, the other sons of the marriage nominatim and the heirs-male of their respective bodies, whom failing, the daughters of the marriage nominatim and the heirs-male of their respective bodies, whom failing, the heirs-female of their sons and daughters in their order. Lady M'Donald's liferent of the estate of Dalchosnie was restricted to the minority of the heir who should first succeed. The entail, which is dated 18th July 1837, was recorded in the register of entails in 1845. Soon after its date Sir John and Lady M'Donald and the defender Alastair M'Iain M'Donald, the institute, were infeft for their respective rights of liferent and fee in Dalchosnie, conform to instrument of sasine dated 18th July, and recorded in the General Register of Sasines at Edinburgh 4th August 1837; and the same parties were afterwards infeft for their respective rights of liferent and fee in the estates of Loch Garry and Kinloch Rannoch, conform to instrument of sasine dated 25th May, and recorded in the General Register of sasines 1st June 1838. The effect of these inter vivos deeds was from the date of the entail,—at all events from the date of the several sasines,—to give to the defender Alastair M'Iain M'Donald an immediate, irrevocable, and absolute right of fee in the three estates of Dalchosnie, Kinloch Rannoch, and Loch Garry, qualified only by his parents' right of liferent, and by the fetters of the entail.

On the same day in which the entail was executed Sir John and Lady M'Donald executed a joint deed of appointment and division of the fortune which had come from her father's estate, and which was now held by the marriage-contract trustees. That deed, like the entail, fully narrates the marriage-contract and the purchase of Loch Garry and Kinloch Rannoch at the price (including subsequent expenditure) of £30,000, ‘and that there was paid towards the purchase of these estates from the said Adriana M'Donald's estate the sum of £25,000, for which an heritable

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bond over them was granted by me to her father's trustees, who were therein infeft, and who have since assigned the bond to the said trustees under the marriage-contract; and it being our desire to settle definitely, onerously, and irrevocably, and mutually, the whole of the estates of Dalchosnie, Loch Garry, and Kinloch Rannoch belonging to me the said John M'Donald, and also to divide, apportion, and settle the whole property, heritable and moveable, including the said sum of £25,000, secured over the said lands of Loch Garry and Kinloch Rannoch, belonging to me the said Adriana M'Donald, on ourselves and our family, and failing our heirs-male, so far to alter the destination in the marriage-contract with regard to Dalchosnie as to settle it with the other lands on heirs-female of the present marriage, giving them a preference and a priority to heirs-male of any subsequent marriage: And in order to effect that object, I, the said John M'Donald, have of this date executed a deed of entail of the said lands of Dalchosnie, Loch Garry, and Kinloch Rannoch, in favour of my said wife and myself, and the survivor of us in liferent, and to the heirs thereinmentioned in fee, and which deed of entail was granted by me in consideration of the declarations and appointment thereinafter made in regard to the property of the said Adriana M'Donald, my wife.’ … ‘That it is our will that the said sum of £25,000, secured over the said estates of Loch Garry and Kinloch Rannoch, shall be settled on and belong to our eldest son and other members of our family in succession, being heirs in possession of the entailed estate, the sum of £25,000 being the share of my (the said Adriana M'Donald's) property which we, the said John M'Donald and Adriana M'Donald, have allotted and apportioned and do hereby allot and apportion as the share of our eldest son, or failing him of the heir of entail succeeding to the said entailed estate, it being our desire and appointment that the said trustees under our marriage-contract before narrated, or the survivors of them, should immediately on the death of the survivor of us renounce and discharge the said heritable bond, and disburden the said lands and estate of Loch Garry and Kinloch Rannoch of the same.’ The remainder of the funds beyond the £25,000 are then apportioned equally among the other children.

After the death of Lady M'Donald, the survivor of the spouses, in 1872, various questions arose among the members of the family as to the distribution of the trust-estate, in consequence of which the trustees raised an action of multiplepoinding, in which the defender Alastair M'Iain M'Donald claimed that the £25,000 appointed to him should be paid to him absolutely, on the ground that the direction to apply the money in discharging the security over Loch Garry and Kinloch Rannoch was an illegal condition, and ultra vires of Sir John and Lady M'Donald. The pursuers, John Alan M'Donald and his sisters, on the other hand maintained that there had been no effectual exercise of the power of appointment at all, in respect that the £25,000 had virtually been apportioned to persons not the object of the power. It was ultimately decided by the House of Lords, reversing the judgment in the Court of Session, that the £25,000 was validly appointed to the defender, and that the qualifications attached to the appointment either imported a mere destination or conditional institution, leaving the defender still the absolute fiar, or amounted to a condition illegal and ultra vires of the granters, and therefore void unless agreed to by the defender. In pursuance of that judgment, the defender has demanded and obtained from the marriage-contract trnstees an absolute assignation of the securities for £25,000, and has disposed of the same in whole or in part to sundry onerous assignees.

The result of all this is, (1) That the defender Alastair M'Iain M'Donald, has for nearly forty years, and still is, infeft as fiar in the estates of Dalchosnie, Loch Garry, and Kinloch Rannoch, under a title absolutely unqualified except by the liferent of his parents and the fetters of the entail; (2) That in 1872 his right to a share of the marriage-contract trust-funds, to which he had from the day of his birth a spes successionis indefeasible except by his own death during the lifetime of the longest liver of his parents, became absolutely vested in him: (3) That by the deed of appointment and division, which did not, and could not, take effect until the death of Lady M'Donald, the share of the fund to which the defender was thus absolutely entitled was fixed by his parents at the sum of £25,000; (4) That the deed which so fixed it was not a settlement by Sir John and Lady M'Donald of any estate belonging to themselves, but was a mere appointment of a fund in which they themselves had a mere right of liferent, the fee being in the children: (5) That it has been settled by final judgment in a litigation in which the present pursuer along with his sisters appear to have keenly contested every point with the defender, that the defender is entitled to that £25,000 absolutely, and that the same is not to be applied in discharging the debt of £25,000 affecting the estates of Loch Garry and Kinloch Rannoch: and (6) That the defender has completed his title to the securities over Loch Garry and Kinloch Rannoch, on which the money is invested, and has received payment of the money in whole or in part.

It is in these circumstances that the pursuer John Alan M'Donald, as the heir called to the succession of the entailed estates immediately after his elder brother, the defender, and the heirs-male of his body, has raised the present action against his brother, for the purpose of having it declared that under and by virtue of the deed of division and the deed of entail above mentioned the defender was ‘bound to make his election as to whether he would take absolutely and unconditionally the sum of £25,000 sterling, allocated to him by the joint-deed of division, or take the said entailed estates, subject to the condition of the same being discharged and disencumbered of the said sum of £25,000 sterling, and that he has made his election, and has claimed and taken the said sum of £25,000 sterling absolutely, and that he has thereby defeated and frustrated the intention of his said father in respect of the settlement of the said estates of Loch Garry and Kinloch Rannoch under the said deed of entail, and has thereby in that respect reprobated the said joint-settlement and deed of division and deed of entail, and that his right, title and interest therein is now, and shall in all time coming, be void and extinct, and that the

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said lands and others, with the rents, maills, and duties of the same, have fallen, devolved, and accreseed and do now belong to the pursuer as next heir appointed to succeed by the said deed of entail.’

It will be observed that the summons relates only to Loch Garry and Kinloch Rannoch, and not to Dalchosnie, the defender's right to enjoy the latter estate being admittedly indefeasible under the marriage-contract, and incapable of being affected by anything which his parents may have done in the deed of division and appointment. And the result of the pursuer's success in this action will be, that the entailed estate, which his parents intended to be a united family estate held by the male representative of the family, will be dismembered, Dalchosnie remaining with the defender, the eldest son, while Loch Garry and Kinloch Rannoch are carried off by the pursuer, a younger son and remoter heir. Nothing but the clearest evidence, not only of the power, but of the intention of Sir John and Lady M'Donald to put the defender to his election, could in my opinion warrant the present demand of the pursuer.

The first question, therefore, to be answered plainly is, whether Sir John and Lady M'Donald had power to put the defender to his election between the entailed lands of Loch Garry and Kinloch Rannoch and the appointment of £25,000 of the marriage-contract free of all destinations or conditions? I confess that, notwithstanding the very able arguments of Mr Trayner and Mr Fraser on behalf of the pursuer, I have not much difficulty in answering that question in the negative. The pursuer rests his case, both on the record and in debate, on the ground that the deed of entail and the deed of division must be read together as forming the testamentary settlements of Sir John and Lady M'Donald. But I am of opinion that these deeds, which are said to raise this case of election, are neither of them testamentary in. the proper acceptation of that term. The entail was in no sense testamentary. By it Sir John M'Donald voluntarily and during his lifetime, and nearly thirty years before his death, conferred upon his eldest son, the defender, the irrevocable and irredeemable right of fee in Loch Garry and Kinloch Rannoch, without any indication ex facie of the deed that by accepting the estate he was to become bound to apply towards the extinction of the debt affecting them any part of the marriage-contract trust funds which were indefeasibly settled upon the children of the marriage, and to a share of which the defender, as one of these children, had at all events a protected spes successionis. On the other hand, the deed of division was not testamentary of the granters, because the funds which were thereby divided by Sir John and Lady M'Donald belonged not to themselves but to their children, subject only to a power of appointment by the parents. Two considerations, therefore, are to my mind conclusive against the power of the granters to put the defender to his election. These are—(1) That long before the alleged case of election emerged, the defender had become, by an inter vivos deed of entail, the irredeemable proprietor of the entailed estates, so that he had not to choose between taking these estates and taking the appointed share of the trust funds; and (2) That the separate deed of division was not a testamentary settlement of the granters, conferring benefits on the defender to which-he was not otherwise entitled. But further, and even if the entailed estates had been conveyed and the power of appointment had been exercised in one and the same deed, and both had been testamentary, the condition annexed to the appointment was illegal and void, and no case of election could arise. This point has been expressly decided in England by the Master of the Rolls (Lord Romilly) in the case of Churchhill v. Churchhill, 1867, L. R. 5 Eq. p. 44, in which all the previous decisions are fully considered and commented on. The rule of law which underlies that judgment, and indeed all the decisions as to election and approbate and reprobate, is, that although res aliena scienter legata in a testament bequeathing a legacy to the owner of the res aliena may put him to his election between claiming the legacy and taking his own property, yet if the testator made his bequest erroneously, believing that he had the power while he had it not, the legatee will not be put to his election. The rule is illustrated in the case of Douglas' Trustees v. Douglas, 1862, 24 D. 1191. Now, in the present case it is clear from the language of the deed of appointment that Sir John and Lady M'Donald believed that they were dealing with a fund belonging to themselves, or over which they had the uncontrolled power of disposal, but as that was an erroneous belief, and as their appointment of £25,000, in so far as restricted and qualified by conditions annexed, was illegally restricted, the presence of these conditions in the deed cannot put the defender to his election.

The second question to be answered is, Whether, assuming that Sir John and Lady M'Donald had power to put the defender to his election, it was their intention to do so? No such intention is expressed, and I am clearly of opinion that none is implied, either in the deed of entail or in the deed of appointment. The terms of the latter deed, however, are founded upon by the pursuer as implying such an intention on the part of the granters. And there cannot be any doubt as to the desire of Sir John and Lady M'Donald that the defender's £25,000 should be applied for the benefit of the heirs of entail. But was that their leading and ruling motive and intention? I think not. In the first place, the words they use are precatory words, and these are not sufficient to raise a case of election. See Blacket v. Lamb, 14 Beavan, p. 482, as commented on by Lord Romilly in the case of Churchill, already referred to. But, in the next place, it is clear that the ruling motive and fixed intention of Sir John and Lady M'Donald in executing the deed of entail and deed of appointment, were that the three estates of Dalchosnie, Loch Garry, and Kinloch Rannoch, should, burdened or unburdened, descend to and be enjoyed by, the heirs male of the marriage in their order, as a united and important family estate. The language of the two deeds, whether read together or separately, is not in my opinion capable of any other construction. As I read these deeds it is not conceivable that the granters thereof intended or could have contemplated, as the possible result of the defender refusing to allow his share of the marriage-contract fund to be applied in

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extinguishing the debt affecting Loch Garry and Kinloch Rannoch, that the united family estate which they were so anxious to found should be dismembered, and that Loch Garry and Kinloch Rannoch should be taken away from the heir of the marriage, and enjoyed as a separate estate by a remote substitute, while Dalchosnie remained with the institute of the entail. I am therefore of opinion that it was not the intention of Sir John and Lady M'Donald to put the defender to his election.

If I am right in these views, there is an end of the case, and the pursuer having failed in maintaining his declaratory conclusions he is not entitled to prevail in his other conclusion for denuding and removing, or for compensation for the prospective loss or damage which he alleges he may sustain by the defender having claimed and obtained payment of the £25,000 absolutely for his own behoof. Indeed, even if a case of election had been made out, I could not have held that the defender had already made his election. He has already obtained possession both of the estate and of the £25,000; and if he was ever bound to make his election it is still open to do so.

In conclusion, I have only to state that even if a clear case of election, such as that for which the pursuer contends, had been made out, I should have had great difficulty in sustaining any claim, either for denuding in favour of the pursuer or for ‘equity of compensation,’ seeing that the pursuer is at present only heir presumptive under the entail, that he may never succeed to the entailed estate, that in any view the defender is, during his life, the only person interested in the rents of the estate and in the annual income of the £25,000; and that any claim of damage at the pursuer's instance is too remote and contingent to admit of being in hoc statu estimated or assessed, or provided for.

On the whole, I am of opinion that the defender is entitled to decree of absolvitor, with expenses.”

The pursuer reclaimed.

Argued for him—Intention was that the £25,000 should be applied to disburdening the estate, and though the defender was not bound to respect that intention, if he frustrates it he cannot take any benefit under deed of entail. This is plainly a case of approbate and reprobate. Deed of entail and deed of apportionment must be read together. If defender has frustrated his parents' intention, he can take what he is legally entitled to, but nothing which he gets of their bounty.

Authorities— Strathmore v. Clidesdale and Dundonald, Feb. 20, 1729, Mor. 6377; Breadalbane, May 5, 1840, 2 D. 731; Black v. Watson, Feb. 9, 1841, 3 D. 522; Earl of Glasgow, Dec. 13, 1872, 11 Macph. 218; Coutts v. Acworth, 1870, L. R. 9 Equity 519; Carver v. Bowles, Jan. 19, 1831, 2 Russell and Mylne 301; King, L. R. 8 Equity 174; Blacket v. Lamb, Nov. 10, 1851, 14 Beavan 482; Churchill, L. R. 5 Eq. 44; Cooper, Nov. 14, 1870, 6 Chancery Ap. 19; Woollaston v. King, April 23, 1869, 8 L. R. Eq. 173.

At advising—

Lord Neaves—This case appears at first sight to be more complicated than it really is. When divested of superfluous matter, it seems to come to a comparatively simple question, and one which is affected by several plain principles of law.

M'Donald of Dalchosnie, who afterwards became Sir John M'Donald, was married to a daughter of M'Inroy of Lude, and their antenuptial contract of marriage is one of the documents requiring here to be specially considered. The contract disposed mainly of two matters. Sir John M'Donald settled his paternal estate of Dalchosnie upon himself and his intended wife in conjunct fee and liferent, but for her liferent use allenarly in case she should survive him, “and to the heirs-male of this present marriage.” On [the other hand, Miss M'Inroy conveyed to trustees her whole interest in her father's estate, to be liferented in manner there mentioned, and after the death of the survivor of the spouses then to be paid over to the child or children of the marriage in such proportions and at such times and under such conditions as the spouses should appoint by any joint deed, or as the lady should appoint, if she survived her husband. The other provisions as to their terms need not be here specified.

The marriage took place shortly after the date of the contract, which was 8th September 1826, and several children were born of the marriage, and among others the pursuer and defender in the present action. Several years thereafter two other deeds were executed, on which the case principally turns.

On 18th July 1837 the spouses executed a joint settlement and deed of division, which narrates the contract of marriage and the facts that Sir John M'Donald had purchased the estates of Loch Garry and Kinloch Rannoch, upon which, besides the price, he had expended a considerable amount in improvements. It was also stated that in the purchase of those estates a sum of £25,000 had been advanced from Lady M'Donald's funds, for which an heritable bond had been granted to her trustees, and which bond had been assigned to the trustees under the marriage contract. Upon this narrative, and the further narrative that it was their desire “to settle definitively, onerously, irrevocably, and mutually the whole of the said estates of Dalchosnie, Loch Garry, and Kinloch Rannoch, belonging to him the said John M'Donald, and also to divide, apportion, and settle the whole property, heritable and moveable, including the said sum of £25,00 secured over the lands of Loch Garry and Kinloch Rannoch, belonging to her the said Adriana M'Donald, on themselves and their family,” the spouses proceeded to make the appointment contained in the deed, by which the said sum of £25,000 was settled upon the defender, their eldest son, and other members of their family in succession, being heirs in possession of the entailed estate. It was explained that this sum was alloted “as the share of the eldest son, or failing him of the heir of entail succeeding to the entailed estate;” to which allotment this addition was appended, “it being their desire and appointment that the said trustees … should immediately on the death of the survivor of them, the said spouses, renounce and discharge the said heritable bond, and disburden the said lands and estates of Loch Garry and Kinloch Rannoch of the same.” The remainder

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of Lady M'Donald's property was to be equally divided among the younger children, exclusive of the heir.

Of the same date, 18th July 1837, there was also executed by Sir John M'Donald the deed of entail referred to in the record, to the nature of which I shall afterwards advert.

A great deal of the discussion which we have had relates to the question of election or of approbate and reprobate. I think it doubtful whether those questions are properly raised in the present case.

It appears to me that the questions referred to resolve always into this position of things—That some party who is in the position of donor makes to another an offer of two different things, upon the footing, express or implied, that the party favoured may either take or reject the two things offered. This state of things implies a choice with a power of rejection or acceptance, and the two things are linked together in such a way as to be inseparable.

I am unable to discover that this state of things occurs here. No doubt there are two matters dealt with, but they are not so dealt with as to give rise to any election. The parents of the two parties—pursuer and defender—executed a deed of appointment and division, but this was not made the subject of a proper offer for their acceptance. It was a positive and valid deed of appointment, by which there was given to the defender, the eldest son of the parents, the sum of £25,000, which the parents alloted and apportioned as his share. The deed contains other matters, and, in particular, declarations or statements as to the debt of that amount constituted over the heritable estates in question, and which debt it was the wish of the father and mother to wipe off by payment.

Now, the introduction of this matter into the deed of appointment might be looked at in one or other of two ways; it might be meant as an inherent and imperative condition of the appointment that the £25,000 alloted to the defender should be specifically applied to the extinction of the debt constituted over the estates to that amount, or it might be considered as something falling short of that qualification. In the process of multiplepoinding previously brought to determine the rights of parties, the pursuer and the other younger children maintained that the appointment in favour of the defender was conditional and qualified, and consequently null, so that the whole divisible funds were to be divided equally among all the children. This Court sustained that plea, and set aside accordingly the whole apportionment. But upon an appeal to the House of Lords that judgment was reversed, and it was decided that the apportionment was good, that it was in itself an absolute apportionment, and what was said as to applying the £25,000 to the extinction of debt was merely the expression of a wish or desire that this should be done, but was not a condition of the apportionment so as either to make it null or to make the desire so expressed obligatory on the defender.

In so far, therefore, as regards the deed of apportionment, it was absolute and unqualified, and the defender was entitled to take the whole sum alloted to him without being under any obligation or restraint as to the application of the money.

But then the pursuer maintains that the deed of entail executed by the father on the same day imposed on the defender an obligation as to the use of the money allotted to him.

Now, it is true that the deed of entail thus executed by Sir John M'Donald was the voluntary deed, and that Sir John might have made it conditional if he had chosen. But the question is, whether he did so? He executed the entail as a de prœsenti deed, but he inserted in it no condition as to the use of the money he apportioned. The form of the entail was that he gave the entailed lands to himself and Lady M'Donald, and to the survivor and to the heirs after-mentioned in fee. This was done upon the conditions, restrictions, and provisions after specified, but these were merely the usual conditions applicable to an entail. The deed then contains a procuratory and precept for infefting the defender and the other heirs of entail in the entailed lands, but there is no provision or condition either irritant or resolutive in connection with the alloted money.

Upon this deed of entail infeftment immediately followed in favour of the spouses in liferent, and the defender as the first heir of entail in fee. These infeftments took place in the years 1837 and 1838, now nearly forty years ago.

It is in these circumstances that the pursuer brings the present action, to have it found substantially that this entail binds the defender to apply the £25,000 allotted to him to the extinction of the debt forming a burden upon the lands in question.

It seems a complete answer to any plea of approbate and reprobate or of election that the defender was never put to any election by his parents. He got the allotment of £25,000, as the House of Lords found, absolutely and unconditionally, and was entitled to expend it or apply it as he pleased. It is said, however, that the entail executed in his favour was a conditional grant, which he could only accept upon the footing, said to be indicated in it, of applying his own £25,000 to the disburdening of the entailed lands to that extent. If this had been an offer by the father to put his son upon an election, it might have been expected that the defender would elect to take or reject the entail as he pleased. But no such option was given. His father gave him the estate at once, the fee of the estate, taking only a liferent to himself, and he immediately infeft the defender, then a mere boy, in the fee. The defender was thus left no option in the matter, and was not by the figure of the transaction placed under any necessity of election.

Accordingly, the House of Lords has found that the defender has an absolute and indefeasible right to the money. It was not pleaded, and at anyrate it was not found, that he was barred from taking the money by any condition or uncertainty as to the entailed estate. It was further held that all that was meant by the language of the apportionment was an expression of desire that the money should be applied in a certain way, but which did not amount to an imperative obligation.

If this was the meaning and effect of the language used in the deed of apportionment, it seems impossible to transfer that language to the deed of entail, and give it there a more stringent meaning. If it was truly meant to qualify

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the entail, the place to do that was in the entail itself, along with other conditions, and certainly to infeft the defender in the entail was an absolute re-instating of him into full and absolute right to the entailed estate as the heir first called.

In these circumstances, it seems to me impossible to hold that this statement which occurs in the deed of apportionment can be read as being more imperative and more of a resolutive condition in the deed of entail, where it is not to be found. There seems no room for thus fettering the defender under either of the deeds, or of putting him to an option of election that was plainly never intended, and for which there is nowhere to be found any clear or unequivocal words.

Upon these grounds, I am for adhering to the Lord Ordinary's interlocutor. I may further state my doubts as to the pursuer's position for pursuing this action as a mere presumptive heir of entail, and also as to the propriety and suitableness of the conclusions of the action, even in their most amended form, but I think it better to deal with the action on its proper merits, so as to settle definitively the rights of the parties.