Scottish Court of Session Decisions

Section 43 of the Statute 11 and 12 Vict, cap.36 (the Rutherfurd Act) enacts that “Where any tailzie shall not be valid and effectual in terms of the said recited Act of the Scottish Parliament passed in the year 1685, in regard to the prohibitions against alienation and contraction of debt, and alteration of the order of succession, in consequence of defects either of the original deed of entail or of the investiture following thereon, but shall be invalid and ineffectual as regards any one of such prohibitions, then and in that case such tailzie shall be deemed and taken, from and after the passing of this Act, to be invalid and ineffectual as regards all the prohibitions, and the estate shall be subject to the deeds and debts of the heir then in possession, and of his successors, as they shall thereafter in order take under such tailzie, and no action of forfeiture shall be competent at the instance of any heir-substitutes under such tailzie against the heir in possession under the same by reason of any contravention of all or any of the prohibitions.'”

In 1698 Andrew Wauchope of Niddrie—Marischall granted a bond of tailzie of his lands of Niddrie-Marischall and others in form of a procuratory of resignation in favour of himself, whom failing to his eldest son and the heirs-male of his body, whom failing to his other sons in their order, and the heirs-male of their bodies respectively, whom failing to certain other heirs. In consequence of the death of his eldest son without issue, Andrew Wauchope in 1710 granted a renewed bond of tailzie also in the form of a procuratory of resignation in favour of William Wauchope, his second (now his eldest) son, and the heirs-male of his body, whom failing the same series of heirs as in the earlier deed, of which this deed was otherwise a transcript throughout. Following the destination, and a condition, that the land should be burdened with the provisions already granted by the entailer to his younger childen, came the following clauses—“And lykewayes it is hereby provided and declared that if it shall happen my lands and estate @mentioned through the faillzie of heirs-male to. fall to heirs-female, in that caise the eldest heir—female shall alwayes succeed wtout. division, and shall be holden to marry a gentleman of the sirname of Wauchope or of any oyr. sirname, who, and the children to be procreat of such marryages, shall be holden to assume, use, wear, and retains the sds. sirname of Wauchope, with my proper armes, and if the sds. heirs-females shall be married the time of their succession, they, their husbands, and their children shall be holden and obliged to assume, use, wear, and retains the said sirname and armes, and if the sds. heirs—female and their husbands and the heirs succeeding to the said estate shall not assume or desist to use and bear the said sirname and armes, then and in that case they, for themselves only if they be descended of my body, and if they be not descended of my body, they and the descendants of their bodies shall amitt and tyne their right and intrest in ye lands, barrony, and oyrs @rehearst, and the same shall pertaine to and be devolved upon, and goe to the nixt person who according to the course of the taillzie, would succeed after the contraveener and the descendants of the contraveener's body. It is also hereby provided that it shall noewayes be leisum nor lawfull to the said William Wauchope, my sone, nor to any oyrs. heirs-male or of taillzie @specifyed at any time coming to alter the order and course of succession appoynted hereby, nor to sell, alienate, or dispone the lands, barrony, or oyrs. @exprest, or any part yrof. either redeemable or under reversion, or to grant woodsets or infeftments of @rent or liferent, or to burden the same with any servitude or oyr. burden, or to sett tacks or rentalls for longer space than during the setter's or receiver's lyfetime, the same not being in diminution of the former rentall, and it is hereby provyded and declared that it shall nowayes be in the power of the sd. William Wauchope, my sone, nor his heirs-male and of taillzie and provision @specifyed, nor any of them, to contract debts or doe any oyr. deed whereby ye lands, barrony, and oyrs @rehearst, or any part yrof. may be apprised, adjudged, or any oyr. manner of way evicted in prejudice of the nixt heir hereby appoynted to succeed, and if the sd. William Wauchope or any oyr of ye heirs-male, or of taillzie and provision @specifyed, shall doe any fact or deed contrair to the provisions @mentioned, either by disponing or by contracting of debt, or dooing any oyr deed contrair to the sds. restrictions, or any of them, then and in yt. case the samine deeds, and all and every one of them, are not only hereby declared to be null and void in themselves, ipso facto, without necessity of any declarator, in soe far as concerns ye lands, barrony, and oyrs. mentioned, soe that they shall not be affected yrwith. in prejudice of the succeeding heirs of taillzie and provision, seeing their presents are granted sub modo, and with the provision @specifyed and no oyrways, but also the contraveeners and descendants of the contraveeners' bodys, if they be not descended of my body, shall forfeitt and tyne their right to the said estate, and the same shall belong to the nixt person and his heirs-male who would succeed nixt after the contraveener' and the descendants of his body, who shall have right to succeed yrinto. by virtue hereof, free from all debts and deeds done and granted or committed by the sds. contraveeners, and it shall be lawfull to the person having right to succeed either to obtains declarators upon the committing of the sds. clauses irritant, and provision declaring and adjudgeing the lands, barronyes, and oyrs. @written to pertaine to them and their forsds., and decerning and ordaining the supperiors to infeft them thereintill, or to obtain ymselves. served, retoured, infeft, and seased in the lands, barronys, and others written as heir to the person who died last vest and seased in the samine before the contraveener in respect the contraveener's right will be resolved and extinct from the time of the contravention in the same manner as if the samine hade not been granted, or to use any oyr. way which may be formall and legall for settling and establishing the right yrof; in their person.”

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In 1811 Andrew Wauchope, the heir then in possession, granted a disposition of taillie to himself in liferent, and his eldest son and the heirs-male of his body in fee, whom failing to his other sons in order and the heirs-male of their bodies respectively. The deed of 1710, however, remained the regulating deed of entail.

In May 1883 Andrew Wauchope, heir of entail in possession, and a descendant of the body of the entailer, raised this action against Andrew Wauchope, Esq., of Airth Castle, David Baird Wauchope, and D. A. Wauchope and G. Wauchope, the two sons of David Baird Wauchope, being the principal substitutes of entail under the destinations in the above deeds called to succeed after him. He concluded for declarator that these three deeds were invalid and ineffectual in terms of the provisions of the 43d section of the Rutherfurd Act above quoted as regarded the prohibitory, irritant, and resolutive clauses therein written or referred to. He made three objections to the validity of the fettering clauses of the entail, only one of which was considered in the Inner House. It was—“The said deeds of entail contain no resolutive clauses directed against heirs of entail who are descended (as the pursuer is descended) of the entailer's body.”

The action was defended by the heirs called in the summons, who maintained the validity of the entail.

The pursuer pleaded—“(1) The deeds of entail libelled not being valid and effectual, in terms of the Act 1685, cap. 22, on the grounds condescended on, and otherwise, are, in virtue of the provisions of the Act 11 and 12 Vict. cap. 36, invalid and defective in toto, and the pursuer is entitled to decree as concluded for. (2) On a sound construction of the said deeds, the pursuer, as being a descendant of the body of the entailer, is not within the scope of the resolutive clauses.”

The defenders pleaded—“(2) The deeds libelled being valid and effectual in terms of the Act 1685, cap. 22, and the pursuer falling within the scope of the respective resolutive clauses thereof, the defender is entitled to be assoilzied from the conclusions of the summons with expenses.”

The Lord Ordinary ( Lee) assoilzied the defenders from the whole conclusions of the summons.

“ Opinion.—The question in this case is, whether the entail of the lands of Niddrie—Marischall and others is invalid and ineffectual under the 43d section of the Rutherfurd Act.

By the renewed deed of entail of 1710, which regulates the succession, the lands were conveyed, failing the entailer himself, to William Wauchope, his then eldest son, ‘and the heirs-male descending of his body; which failing to James Wauchope, my second son, and the heirs-male descending of his body; which failing’ to other sons in their order, and in each case’ the heirs-male descending of his body;’ which failing ‘to the other heirs—male to be procreate of my own body; which failing to the heirs-male descending of the body of the entailer's brother John; which failing to the only son of a deceased brother James ‘and the heirs-male to be procreate of his body; which failing to the heirs-male descending of ye body of the deceast Francis Wauchope, my father brother; which failing to my heirs-male what so-ever; and which all failing, as God forbid, to my heirs and assignees whatsomever.’

The eldest son William and his issue having failed, the estate devolved upon a son of James Wauchope. The pursuer is a descendant of the body of James Wauchope, and is in possession of the estate in virtue of the tailzied destination.

[After dealing with the other two objections stated by the pursuer to the validity of the entail]—“The third objection to the entail is, that the resolutive clause applies only to contraventions by heirs not descended of the entailer's body, and therefore has no application to the pursuer. The clause is as follows—‘But also the contraveeners and descendants of the contraveeners’ bodys, if they be not descended of my body, shall forfeitt and tyne their right to the said estate, and the same shall belong to the nixt person and his heirs-male who would succeed nixt after the contraveener and the descendants of his body who shall have right to succeed yrinto by virtue hereof, ffree from all debts and deeds done and granted or committed by the sds. contraveneers. ‘It is contended that the words ‘if they be not descended of my body,’ apply here to the contraveners as well as to the descendants of contravene’. It is said that the antecedent to ‘they’ must be the same as the antecedent to the relative ‘their’ in the clause ‘shall forfeit and tyne their right.’ It is also urged that the clause of devolution in favour of the heir ‘who would succeed nixt after the contraveener and the descendants of his body,’ is not reconcileable with a construction which should apply the resolutive clause to contraventions by descendants of the entailer's body, seeing that in any case the descendants of contraveners are only to forfeit their right if the contravener be not descended of the body of the entailer.

I think it must be conceded that if the resolutive clause be applicable to all contraveners, there is inaccuracy and defect in the expression of the clause devolving the estate upon the next heir. And my only difficulty in the case has been to make sure that there is no ambiguity in the opening words of the clause, for if there were, the words of devolution might be founded on as explaining and limiting the scope of the resolutive clause. A similar inaccuracy of expression, however, appears in the clause at the foot of p. 18 and top of p. 19 [the clause relating to a contravention of the provision in the entail relating to the use of the surname and arms of the entailer, which clause is quoted above], where there is no ambiguity about the application of the special resolutive clause, and if the present resolutive clause be unambiguous in its application to all contraventions, an error in the expression of the clause devolving the estate on the next heir will not in my opinion create a defect in the resolutive clause.

The solution of the difficulties raised by the pursuer seem to me to depend upon the question, What is the class of contraventions referred to in the clause commencing ‘but also?’ In answering that question I think that the clause must be read in connection with the irritant clause to which it is appended, and so reading it, I think it not doubtful that all contraventions, whether by contraveners descended of the entailer's body, or by those not descended from him, are struck

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at. On a reasonable and even strict construction of the clause, I think that it sufficiently declares that all contraveners shall forfeit and tyne their right to the estate, and that their right shall also be forfeited by their descendants if they be not descended of the entailer's body. There being therefore, in my opinion, no ambiguity in the clause resolving the right of the contraveners, I cannot find that it is defective by reason of defect or inaccuracy in the subsequent declaration as to who is next to succeed to the estate.

The result is, on the whole, that I repel all the objections, and assoilzie the defenders from the conclusions of the action.”

The pursuer reclaimed.

Their Lordships of the Second Division having heard counsel on the reclaiming-note “in respect of the difficulty and importance of the question,” appointed the cause to be argued before them and three Judges of the First Division.

Argued for pursuer—The resolutive clause was ineffectual as against descendants of the body of the entailer. The saving clause, “if they be not descended of my body,” applied to “contraveeners and descendants of contraveeners'bodys,” and the clause therefore did not strike at a con—travener who was a descendant of the entailer's body. This appeared from an analysis of the whole resolutive clause. In the expression “their rights” the pronoun “their” had for antecedent both “contraveeners” and “descendants of the contraveeners' bodys.” If this were so, then the “they” preceding in the-saving clause must have the same antecedent. “Their right” — in the singular—meant the right, one and indivisible, of the contravening stirps. All this was shown by the terms of the clause of devolution immediately following. Devolution could not be from a contravener to his descendants, but must always be to a new stirps — Bruce 4 Paton's App. 231. In short, the construction contended for was (1) natural and grammatical, (2) the only natural and grammatical one, (3) the only one consistent with the clause of devolution. The rule of strict construction of entails which prevailed before the Rutherfurd Act — Graham v. Murray, January 21, 1848, 10 D. 380, per Lord Cunninghame, 388, and Lord Moncreiff, 396—was not relaxed by the operation of that Act— Earl of Airlie v. Ogilvy, December 16, 1852, 15 D. 252, per Lord Rutherfurd, 355; Jamieson v. Campbell, January 25, 1853, 15 D. 336, per Lord Rutherfurd, 338; Lumsden v. Lumsden, 2 Bell's App. 104; Earl Kintore v. Lord Inverurie, 4 Macq. 520; Speirs v. Speirs' Trustees, June 14, 1878, 5 R. 923, per Lord Mure, 929; Wallace v. Wallace's Trustees ( Auchinvole case), June 10, 1880, 7 R. 902. There was no suggestion in any of the authorities—early or recent—that an entail was to be construed on principles like those applied to a will. The only suggestion in that direction was that of Lord Corehouse in the ease of Speid, February 21, 1837, 15 S. 622, and it had not been followed.

Replied for the defenders—“They” had for antecedent “descendants of the contraveeners' bodys” only, not “contraveeners and descendants,” &c. The article “the” before descendants, which was found in the earlier deed, and which had apparently dropped out of this one by mere clerical inadvertence, was of importance on this reading, and it was legitimate on the present principle of the construction of entails to appeal to it. But even leaving out the “the” his reading was the most technical as well as natural and grammatical one. There was no ambiguity in it, and till you had such—the presumption being always that the maker intended to make a good entail—there was no room for an appeal to rules determining between two competing constructions — Auchinvole case ( supra cit.), per Lord Justice—Clerk. The defender's construction was enough to satisfy the “they;” the opposing one gave more than the necessary effect to it, which was contrary to sound rules of construction. The devolution clause was not part of the resolutive clause proper, and could not be read to qualify the resolutive clause more directly than any other part of the deed. If in this clause there were read in “said” before “descendants” all ambiguity ceased. But be it that the devolution clause was somewhat hazy, it was no part of the fetters, and the entail would stand without it. Further, granting the clause to be ambiguous as it stood, the ambiguity was cleared up by reference to another part of the deed. There was a resolutive clause attached to the requirement that the heir in possession should use the entailer's name and arms, which expressed without any ambiguity the reading he desired to put on this clause. Such an interpretation from within the four corners of the deed was to be preferred to an extraneous and conjectural one. But further, the old rule of Strict construction was now modified by the progress of entail law, which had so altered the conditions of entails that the ratio of the rule had vanished. That rule was founded on the unwillingness of the Court to keep up the detrimental effect of entails on the commerce of land referred to by Lord Stair (ii. 3, 58), not on any unwillingness of the Court to support an entail, even an old entail, as all that it now is is a reasonable family settlement. This argument, which applied more or less from the time of the Rutherfurd Act, was now, since the recent Act of 1882 (secs. 13 and 18), conclusive. The provisions of that Act had removed all the remaining reasons of hostility to entails. The interests of commerce and public policy no longer drove the Court into a malignant straining of the words of the deed in favour of freedom from the fetters of an entail.

At advising—