Scottish Court of Session Decisions

This was a petition presented by T. M. Bruce Gardyne, Esq., heir of entail in possession of the estate of Middleton in the county of Forfar, for the purpose of disentailing that estate.

The deed of entail under which the petitioner held the estate of Middleton was made by the deceased Thomas Gardyne, Esq., of Middleton, dated 2d May 1814, and recorded in the register of tailzies 25th May 1841, the destination being to the granter “and the heirs whatsoever of his body, whom failing to Mrs Ann Gardyne, his eldest sister-german, relict of Captain James Bruce, sometime residing in Aberbrothock, in liferent, and to Captain William Bruce of the 37th Regiment of Foot, their only son, his nephew (afterwards William Bruce Gardyne of Middleton, the petitioner's father), and the heirs-male of his body in fee, whom failing” to a series of other heirs.

The deed of entail was in ordinary form, and contained the usual clauses, and also the following clause, upon which the present question arose—“Declaring always, as it is hereby expressly provided and declared, that notwithstanding of the above destination and order of succession, and clauses irritant and resolutive before prescribed, the foresaid lands and estates hereby disponed, shall, upon the expiry of the term and period of sixty-eight years from and after the date hereof, and the lifetime of the person then in possession, become a fee-simple in the person of the next heir or substitute who shall succeed in virtue hereof.”

The entail being dated 2d May 1814, the sixty-eight years specified in this clause expired on 2d May 1882.

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The petition set forth, that in terms of the clause just quoted, the party who would succeed immediately after the petitioner in the said estate would hold the same in fee-simple, and that the petitioner was thus the only heir of entail in existence, and was entitled to disentail the estate, and acquire it in fee-simple, without the consent of any of the heirs called after him in the deed of entail.

Answers were lodged for J. W. B. Gardyne and J. M. B. Gardyne, the brother and nephew of the petitioner, who were, after the petitioner and the heirs of his body, the next heirs-male of the body of Captain William Bruce. The respondents maintained that they were thus heirs of entail called under the destination contained in the deed of entail, and that the respondent J. W. B. Gardyne was heir-presumptive of entail of the petitioner, that the petitioner was therefore not the only heir of entail in existence, and that he was not entitled to disentail the estate without the consent of any of the heirs called after him by the deed of entail.

On 31st July 1883 the Lord Ordinary ( Kinnear) pronounced this interlocutor—“The Lord Ordidary having considered the petition and answers for James William Bruce Gardyne and others, finds that under the deeds of entail set forth in the petition the petitioner is not the only heir of entail in existence, that he is not entitled to disentail the estate and acquire it in fee-simple without the consent of any of the heirs of entail called after him by the said deeds of entail: Therefore dismisses the petition, and decerns: Finds the respondents entitled to expenses, &c.

“ Note.—The petitioner maintains that he is the only heir of entail in existence, and is therefore entitled to disentail without consents, because by the conditions of the entail the heir next entitled to succeed after him will be free from the fetters, and entitled to hold in fee-simple. His contention is that the case falls within the rule that an entail does not subsist in favour of heirs whatsoever, and is therefore held in fee-simple by the last heir to whom the estate is specially destined. The rule in question is well settled, but it is not in my opinion applicable to the case.

It is unnecessary to refer in detail to the decisions, which are very numerous. But those specially founded on by the petitioner were Henry v. Watt, 10 S. 644; Colville v. Colville, 4 Bell's App. 248; and Gordon v. Mosse, 14 D. 269. The principle upon which they all proceed may be stated in the words of Lord Fullerton in the case last mentioned. After pointing out that the question how far the fetters of an entail should be available against the acts of the last fettered heir in favour of the heirs and assignees of the entailer called in the last destination, after the proper entailed substitution had expired, had been decided against the heirs and assignees in the case of Cassillis and Others, Lord Fullerton proceeded to state the reason of the decisions thus —’ The term heirs and assignees is that technically appropriated to a class of persons in whom the disponer is supposed to feel no special interest, and who are thus distinguished from those called by special substitution. According to all the authorities, the general clause in their favour after the termination of the proper entail is ascribed, not to any special intention in their favour, but to the necessity of some such appointment in order to exclude the claim of the Crown.’

But the respondents are not in the position of heirs whatsoever, but are all of them in the class of proper substitutes called by special destination. If either of them succeeds he will take as heir of tailzie and provision, and in no other character. The petitioner is the last fettered heir; but that is not because of his being the last person whom the entailer specially desired to favour, but because that will be the position of the heir coming after him, and for whose benefit the entailer intended that he should still be subjected to the fetters. There can be no question that the entailer intended that the heir who should be in possession on the expiry of the term of sixty-eight years should not hold in fee-simple, but should still be fettered for the benefit of the next heir; and it follows that he can take no advantage from the presumption that heirs of the special substitution are not intended to be fettered for the benefit of heirs whatsoever.

It is admitted that the entail is effectual, and it is on that footing that the petition is presented. The only question, therefore, is, whether upon a sound construction of the deed the entailer intended the fetters to apply to an heir in the position of the petitioner? If he did, the next substitute is undoubtedly an heir of entail, although when he has taken up the estate in that character he will be entitled to hold it in fee-simple.”

The petitioner reclaimed, and argued — The petitioner was the last heir of entail, as he was the last heir who comes under the fetters of the entail; the next heir would become, on his succession, fee-simple proprietor of the estate, and could not be called an heir of entail in the sense of the Act of 1685. The petitioner here was in the same position as the last substitute heir of entail called immediately before the heirs whomsoever, or heirs and assignees, of the entailer. On the analogy of the cases which have decided that the last substitute in an entail closing with such a destination may deal with the estate as a fee-simple proprietor, the petitioner had a right to possess this entailed estate in fee-simple— Stewart v. Home, M. 15,535; Colville v. Colville, March 8, 1843, 5 D. 861 (Lord Jeffrey at p. 863), aff. 4 Bell's App. 248; Gordon v. Mosse, December 19, 1851, 14 D. 269 (Lord Ivory at p. 274); Steele v. Cowpar, February 15, 1853, 15 D. 385; Gordon v. Gordon's Trustees, October 28, 1881, 9 R. 50 (Lord J.-C. Moncreiff at p. 72).

The respondents were not called on.