Scottish Court of Session Decisions

Section 1 of the Aberdeen Act 1824 (5 Geo. IV. c. 87) provides that “Whereas” by the Act 10 Geo. III. c. 51, “the proprietors of entailed estates in Scotland were empowered to burden their estates and the subsequent heirs of entail for the improvement of their entailed estates.… And whereas sundry entails of lands and estates in Scotland contain no powers in regard to the granting of provisions to the wives or husbands and children of the proprietors thereof, … and it has become expedient that the powers of granting such provisions should be conferred or enlarged, as the case may be, … it shall and may be lawful to every heir of entail in possession of an entailed estate under any entail already made or hereafter to be made in that part of Great Britain called Scotland, under the limitations and conditions after mentioned to provide and infeft his wife in a liferent provision out of his entailed lands and estate by way of annuity: Provided always that such annuity shall not exceed one-third part of the free yearly rent of the said lands and estates where the same shall be let, or of the free yearly value thereof where the same shall not be let, after deducting the public burdens, liferent provisions, the yearly interest of the debts and provisions, including the interest of provisions to children hereinafter specified, and the yearly amount of other burdens of what nature soever affecting and burdening the said lands and estates or the yearly rents or proceeds thereof, and diminishing the yearly rent or value thereof to such heir of entail in possession, all as the same may happen to be at the death of the grantor.”

Section 3 enacts that only two liferent provisions are to be subsisting at one time.

By section 4 it is provided that “It shall and may be lawful to the heir of entail in possession of any such entailed estate as aforesaid to grant bonds of provision or obligations binding the succeeding heirs of entail in payment out of the rents or proceeds of the same, to the lawful child or lawful children of the person granting such bonds or obligations who shall not succeed to such entailed estates, of such sum or sums of money bearing interest from the grantor's death as to him or her shall seem fit: Provided always that the amount of such provision shall in no case exceed the proportions following of the free yearly rents or free yearly value of the whole of the said entailed lands and estates after deducting the public burdens … diminishing the clear yearly rent or yearly value thereof as aforesaid to the heir of entail in possession.”

It is further provided in this section that with the exception covered by section 5 these provisions shall only apply to children alive at the death of the grantor.

Section 5 enacts that “if any child to whom any such provision as aforesaid may be granted shall marry, and that such provision or any part thereof shall, with the consent of the grantor of the same, be settled in the contract made in consideration of the marriage of such child, and such child so marrying shall die before the grantor of such provision, then and in all such cases the provision or any part thereof so settled in consideration of such marriage shall remain and be effectual as if such child had survived the grantor.”

Section 6 provides that where provisions to children have been already granted to the extent of three years' free rent, no further provisions to children are to be granted till the former have been diminished.

Section 9 enacts that “After the expiration of one year from the death of the grantor of such provisions to children as aforesaid, it shall and may be lawful for the person or persons having right to the same to

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require the heir succeeding to the estate to make payment of the said provisions with the legal interest thereof from the term at which the right of such succeeding heir to the rents of the estate did commence.”

The estates of Dunskey, Brownhill, and others, including the dominium utile of the lands of Brownhill, in the counties of Wigtown and Ayr, were formerly held under a disposition and deed of entail executed in 1843 by the late Major-General Thomas Hunter Blair of Dunskey in favour of himself and the heirs of his body, whom failing to Sir Edward Hunter Blair, the entailer's brother. The disposition contained the following provision:—“As also with and under this condition, as it is hereby provided, that if any of my said heirs of entail shall at the time of his or her succession to my said lands and estate, or any part thereof, be in possession of the lands and estate of Brownhill, Blairquhan, and others, presently belonging to the said Sir David Hunter Blair, or any part thereof, such heir, unless he or she shall within three months after such succession denude himself or herself of the said estate of Brownhill, Blairquhan, and others, shall be excluded, debarred, and disqualified from succeeding to my lands and estates before disponed, or any part thereof; and in case any of my said heirs who shall have succeeded to and taken possession of my said lands and estates hereby disponed, or any part thereof, shall afterwards succeed to the said lands and estate of Brownhill, Blairquhan, and others, or any part thereof, such heirs shall be excluded and debarred from taking possession of the said lands and estate of Brownhill, Blairquhan, and others, or any part thereof; and in the event of such heir taking possession of the said lands and estate of Brownhill, Blairquhan, and others, or any part thereof, he or she shall forfeit, amit, and lose his or her right to the lands and others hereby disponed, and in either of the events foresaid, of any such heir being in the previous possession without denuding as aforesaid, or taking subsequent possession of the said lands and estate of Brownhill, Blairquhan, and others, or any part thereof, the said lands and others hereby disponed shall fall, accresce, and belong to the next heir of tailzie, who shall be at liberty to take up the succession and establish titles in his or her person, as if the person disqualified or contravening were naturally dead, and that either by service or declarator in manner as hereinafter directed with respect to the other irritancies.”

The estate of Brownhill mentioned in the above provisions was merely the superiority of the lands, the dominium utile being included in the entail of Dunskey and others. The estate of Blairquhan contained a corresponding clause of devolution in case the succession to Dunskey should open to the same heir. Sir Edward Hunter Blair succeeded in September 1819, on the death of General Thomas Hunter Blair, to the entailed estates of Dunskey and others, and made up titles thereto. In June 1850 he married, and by an antenuptial contract of marriage dated 3rd June he made provision under the Aberdeen Act for his widow and for the children of the marriage who should not succeed to the entailed estates. By the contract of marriage Sir Edward Hunter Blair bound himself and his heirs of entail “duly and validly to infeft and seise the said Elizabeth Wauchope, his promised spouse, in case she shall survive him, in all and whole a free liferent annuity of £600 sterling.” The annuity was to be increased in a certain event which afterwards happened by an additional annuity of £200 to £800. The annuities were payable out of the said entailed estates of Dunskey and others, and were declared to be “provided and accepted under all the conditions, restrictions, and limitations whatever contained in” the Aberdeen Act, and especially under the condition that if the annuities should exceed “one-third of the free yearly rent or value of the said lands and estate, as the same shall be ascertained in manner pointed out by the said statute,” they should be restricted to the third part thereof as ascertained in manner foresaid. The provisions in favour of children were for one child the amount of one year's free rent, for two the amount of two years' free rent, and for three or more of three years' free rent. In security of the annuities Lady Hunter Blair was duly infeft in the said annuities to be uplifted and taken furth of the lands of Dunskey and others in terms of the contract of marriage conform to instrument of sasine in her favour recorded on 6th June 1850. On the death of Sir Edward's father in December 1857 the succession to the estate of Blairquhan opened to him, and he elected to take it up, and executed a deed of denuding and disposition of the estate of Dunskey and others in favour of his eldest son and the heirs of his body. In 1858 Lady Hunter Blair granted a deed of restriction whereby she released and discharged the lands of Brownhill from the security of the annuities in which she was infeft, but it was declared and provided that her doing so should in no way injure or affect these annuities, “excepting only in so far as concerns the foresaid lands and others hereinbefore expressly declared to be redeemed and disburdened thereof, but that the said annuities and the said contract of marriage and sasine thereon themselves shall remain in as full force and effect as formerly, as affecting the remaining lands and others therein contained not hereby disburdened thereof.”

The Rev. David Hunter Blair, who succeeded to the estates of Dunskey and others in consequence of the denuding in his favour by his father, presented a petition to the Court in 1876 for authority to disentail the estates. He was unaware of the existence of the deed granted by Lady Hunter Blair, which was accordingly not brought to the notice of the Court. As a condition of obtaining the disentail he was ordained to “give security over the entailed estates of Dunskey, Brownhill, and others for the provisions granted by Sir Edward Hunter Blair in

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favour of his wife and his younger children,” and the necessary bond of annuity and disposition in security in favour of the marriage-contract trustees for that purpose was executed and recorded. His right to challenge the validity of the provisions was expressly reserved. The existence of the deed of restriction having come to the knowledge of Sir David Hunter Blair in 1888 he raised an action of reduction of the bond and disposition in security in so far as affecting the lands of Brownhill. The Lord Ordinary found that the security given over the lands of Dunskey, Brownhill, and others “will be full and sufficient, although the lands of Brownhill are released and discharged from the said security,” and ordained the defenders to deliver to the pursuer a deed discharging the lands of Brownhill from the security created by the bond of annuity and disposition in security. A deed of restriction was executed restricting the security accordingly, but it was declared that it was not to affect the amount of the annuity payable to Lady Hunter Blair, or her right to have the rental of the lands disburdened taken into computation in connection therewith. There was also a provision to the effect that Sir David Hunter Blair's right to challenge the provisions was reserved entire.

Sir Edward Hunter Blair died on 7th October 1896, survived by his widow and more than three children. A special case was presented to the Court by (1) The Rev. Sir David Hunter Blair, (2) Lady Hunter Blair, (3) Lady Hunter Blair's marriage-contract trustees, (4) the children of Sir Edward and Lady Hunter Blair other than the first party, and the trustees of certain of. them who were married, and (5) the trustees acting under the trust-disposition of Sir Edward Hunter Blair.

The following were the contentions of the parties as set forth in the case:—“The first party maintains—(1) that in consequence of the succession of Sir Edward Hunter Blair to the said estates of Blairquhan and others, and the necessary denuding by him of the said estates of Dunskey and others, the said provisions granted by the said Sir Edward Hunter Blair in favour of the second and third parties are ineffectual against him and the said estates of Dunskey and others; (2) that if the said provisions are effectual, the rental of the said estates of Dunskey and others, excluding Brownhill, as at 1858, the year of the denuding, is to be taken for the purpose of ascertaining the amount of the annuity; (3) that the said provision to younger children is in any event restrictable to three years' free rent of the said estates of Dunskey and others, calculated as at 1858, the year of the denuding. The second party maintains—(1) that the provision in her favour is valid and effectual; (2) that the amount of her annuity is not affected by the deed of restriction granted by her in 1858; and (3) that the rental of 1896, the year of Sir Edward Hunter Blair's death, or alternatively of 1876, the year of the disentail, must be taken for the purpose of ascertaining whether it is restrictable. The third and fourth parties maintain (1) that the provision by the said Sir Edward Hunter Blair in favour of his younger children is valid and effectual; and (2) that the said bond for £20,000 is restrictable to three years' free rent of the said estates of Dunskey and others, calculated as at 1896, the year of Sir Edward Hunter Blair's death, or alternatively as at 1876, the year of the disentail. The fifth parties adopt the contentions of the second, third, and fourth parties.”

The questions submitted to the judgment of the Court were—(1) Is the annuity granted by the said Sir Edward Hunter Blair to the second party by said antenuptial contract of marriage, and secured by the said instrument of sasine and the said bond of annuity and disposition in security, effectual to the second party as against the first party and the said estates of Dunskey and others? (2) In the event of the preceding question being answered in the affirmative—( a) In ascertaining the amount to which said annuity may be restrictable, is the rental of 1858, the year of denuding, or that of 1876, the year of disentail, or of 1896, the year of Sir Edward Hunter Blair's death, to be taken? ( b) Does the rental of Brownhill, if necessary, fall to be taken into account in fixing the amount of said annuity? (3) Are the provisions granted by the said Sir Edward Hunter Blair to his younger children by the said contract of marriage, and secured by the said bond and disposition of security, effectual to the said younger children or their representatives as against the first party and the said estates of Dunskey and others? (4) If the preceding question is answered in the affirmative, is the said bond for £20,000 restrictable to, and the amount of said provision to be held to be three years' free rent, calculated as at 1858, or as at 1876, or as at 1896? (5) If questions Nos. 1 and 3 are answered in the affirmative, is the first party entitled to be relieved of the said annuity and provisions out of the general estate of the said Sir Edward Hunter Blair?”

The case was argued before the First Division, and the Court on 2nd December appointed all the questions except 2 ( b) and 5 to be reargued before them and Lords Kyllachy, Low, and Pearson.

Argued for the first party—The provisions of the Aberdeen Act were subject to an implied condition that the granter died in possession of the entailed estate. The statute had not provided for a case where for any reason the heir in possession had parted with the estate before his death, and such a one having lost his right to it was outwith the statute and the powers conferred by it. It was true that this view was negatived by the case of Earl of Kinnoul's Trustees v. Drummond, February 26, 1869, 7 Macph. 576, but the decision in that case was not warranted by the terms of the statute and should be reconsidered. With regard to the provisions of the statute, too much weight should not be attached to the “expediency” clause of the

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preamble, for it was not the intention of the Legislature to confer a wide power quite irrespective of circumstances. Here the circumstances were that the heir in possession of one estate had elected to take possession of another more valuable one, out of which he might make ample provision for his wife and family, so no injustice would be done by upholding the first party's contentions. On a fair reading of the first section “such heir” must refer to the general description of the class of persons empowered to grant provisions—in other words, it was equivalent to “the granter,” and as the burdens to be taken into account were those diminishing the rental of the granter at his death, it followed that he must be in possession at his death if the clause was to have any application. The provisions might be good enough when granted, but if the granter did not die in possession they must fall to the ground. The other sections of the statute bore out this contention. Thus section 3 was inconsistent with any other, for if the denuder chose to take up a more valuable estate, and the provisions imposed by him on the original estate were left standing, the inequitable result might follow that the new heir in possession would be cut out altogether from making any provisions, since only two liferents could subsist at one time. The same argument applied to the restrictions in section 6 as to the provisions in favour of children. Again, in section 4 by the words “as aforesaid,” reference was made back to section 1, and to the condition that the granter must die in possession of the estate. By section 9 interest must be paid from the date when the right of the person paying such interest commenced. That showed this date must be synchronous with the death of the granter, but according to the contention of the second party interest would run from the date of devolution, though no right to the provision evolved at that time. With regard to the other modes by which an heir of entail in possession might part with his right to an estate, viz., irritancy, propulsion to his eldest son, and compulsory sale, the provisions would be equally defeated by any of these processes. In the case of the last, a compulsory sale must naturally be preferable to a voluntary annuity. The granter was not given any power by the Act to override the claims of his creditors. But the same answer would apply to all these cases, viz., that the statute did not contemplate them, but applied only to cases where granter died in possession. The effect of the deed of restriction granted by the second party in 1858 had been to release Brownhill from the burden, and the second party was no longer infeft in it. The marriage-contract must be read along with this deed of restriction. Accordingly, taking the two deeds together, it followed that the rental of Brownhill did not fall to be taken into account in lixing the amount of the second party's annuity.

Argued for second party—It was admitted that the provisions were good when granted, and accordingly the only question was whether they flew off when devolution took place. The question had been expressly decided in Earl of Kinnoul's Trustees v. Drummond, and the decision there was justified by the terms of the Act. When the Act stated that certain provisions might be made, it placed the heir of entail in possession quoad this in the position of a fee-simple proprietor, with certain limitations. There was and could be nothing in the bond granted by such an heir to show that the provisions were contingent on his dying in possession, and accordingly it was antecedently improbable that it could be intended by the statute that they should fly off if there was devolution. There was nothing said in it to that effect, and the first party's contention rested solely on a doubtful grammatical construction of the word “such” in the first section. The difficulty suggested by him arose in a part of that clause dealing with the measure of the bond. The word “such” was really only equivalent to “the,” for before it was necessary to begin to measure the right, the man granting it was dead, and it would be absurd to make “such” refer to him. “The granter” is expressly contrasted with the person described as “such,” who must be the successor affected by the burden of the provisions. The following sections were in no way inconsistent with this view. Thus section 5 assumed that there was a fund of credit to be dealt with in a marriage-contract, and not a word was said of its flying off in the event of devolution. Again, the provisions in sections 3 and 6 inflicted no hardship on the heir taking by devolution, for he must take the estate with all its burdens, and the effect of the devolution was to give it to him sooner than he would naturally have had it. The difficulty of section 9 was only an apparent one. That clause was not intended to define the extent of the provision to younger children which had been already done by the fourth, but merely to regulate procedure in the normal case. In the ordinary case the granter would be in possession at his death, and so it was natural to provide that interest should only begin to run from that date when the claim would arise. It was true there was no provision specially made for the case of devolution, but that could not make any difference in the right. The analogous cases of irritancy, propulsion, and compulsory sale, proved the falsity of the first party's contention. The logical outcome of his argument was that provisions by an heir in possession would be defeated by any of these events, and it was clear that the statute did not contemplate that the rights created by it would be defeated in all these cases, which would be a most inequitable result.— Morton v. Eglinton, July 8, 1817, 6 Bell's App. 136: Earl of Cassilis v. Hamilton, 1745, 1 Pat. App. 381; Callendar and Lothian v. Willyson, 1725, M. 15,554: Sandford on Entails, p. 433. (2) The effect of the deed of restriction was in no way to diminish the amount of the second party's annuity, but merely to

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diminish the security which she held for it, which was an entirely different thing.

At advising—