Scottish Court of Session Decisions

In 1894 the estates of the Master of Napier were sequestrated, and Robert Cockburn Millar, C.A., was appointed trustee. In 1898, on the death of his father Lord Napier and Ettrick, the Master of Napier succeeded to the title and to the entailed estates of Thirlestane and others, under a deed of entail dated in 1719.

On 13th March 1899 Mr Millar presented a petition for the disentail of the estates of Thirlestane and others, under section 18 of the Entail Act 1882.

The petition set forth, inter alia, that the said Lord Napier and Ettrick was born on 22nd September 1846, and would be entitled to disentail the said estates with consent of the Honourable Francis Edward Basil Napier, now commonly called the Master of Napier, his eldest son and heir-apparent, who was of full age and not subject to any legal incapacity, and was born on 19th November 1876; and that the two next heirs of entail who were entitled to succeed to the said entailed estates in their order successively after the said Lord Napier and Ettrick and the said Master of Napier, the heir-apparent, were the Honourable Frederick William Scott Napier, the second son and only other child of the said Lord Napier and Ettrick, who resided at Thirlestane Castle, Selkirk; and the Honourable John Scott Napier (Lord Napier's brother).

On 14th March 1899 the Lord Ordinary ( Pearson) pronounced an order for intimation, advertisement, and service, and the petition was duly served upon Lord Napier and upon the three next heirs, namely, his two sons and his brother.

After the date upon which the petition was presented the said Honourable Francis Edward Basil Napier, Master of Napier, married, and had a son, who was born on 9th September 1900, and who took the place of the said Honourable Frederick William Scott Napier as heir second entitled to succeed to said entailed estates.

On 7th April 1899 the Lord Ordinary pronounced the following interlocutor:—“Appoints the respondent William John George Lord Napier and Ettrick to produce in process a schedule signed by him and deponed to by him as correct in terms of the Act 38 and 39 Vict. cap. 61, section 12, with regard to entailer's debts or other debts and provisions affecting or that may be made to affect the fee of the entailed estates of Thirlestane and others mentioned in the petition, or the heirs of entail that are not secured by having been placed on the record: Further, remits to Mr Charles Cook, W.S., Edinburgh, to inquire into the facts and circumstances set forth in the petition, and whether the procedure has been regular and proper and in conformity with the provisions of the Entail Acts and relative Acts of Sederunt, and to report: Remits also to Mr David Deuchar, actuary, 19 George Street, Edinburgh, to value in money the expectancy or interest in the said entailed estates of the Honourable Francis Edward Basil Napier, commonly called the Master of Napier, and to report.”

On 24th April 1899 the Lord Ordinary remitted to Mr James Inglis Davidson, land valuator, to value the estate of Thirlestane, and to report.

Various other interlocutors, which it is unnecessary to detail, were also pronounced, but no intimation was ordered to be made to the heir whose consent required to be obtained or dispensed with, except in the first order for intimation and service.

On the presentation by Mr Cook, W.S., of an interim report, under the remit made to him by the interlocutor of 7th April 1889, an objection to the competency of the proceedings was stated on behalf of the heir-apparent, and concurred in by the curator ad litem for his infant son, in respect that no intimation three months after the date of the petition had been made to the heir whose consent required to be obtained or dispensed with.

The Entail (Scotland) Act 1882 (45 and 46 Vict. c. 53) enacts as follows:—“Section 18—Where any heir of entail in possession is entitled to disentail the estate with the consent of any other heir or heirs, or upon such consent being dispensed with by the Court, any creditor of such heir in possession, in respect of debts incurred after the passing of this Act, who has obtained decree against him for payment and charged upon the decree, shall in the event of the debt so incurred not being paid for six months after the expiration of the charge be entitled to apply to the Court, and the Court shall, if the said debt is not paid within three months after the date of the application, order intimation to be made to the heirs whose consents would be required or must be dispensed with by the Court in an application for disentail by the heir in possession, and in the event of any of the said heirs, or his curator ad litem appointed in terms of this Act, refusing to give his consent, the Court shall ascertain the value in money of the expectancy or interest in the entailed estate of such heir.…

“If the estates of such heir of entail in possession of an entailed estate shall be sequestrated for debt incurred after the passing of this Act, the trustee on his sequestrated estates shall be entitled to apply to the Court for authority to disentail the estate, and the Court shall forthwith proceed in the same manner as is directed in this section with regard to the application of a creditor.”

On 7th February 1901 the Lord Ordinary pronounced an interlocutor whereby he found, inter alia, that “no further intimation of the proceedings requires to be made at this stage.”

Opinion—“The estates of Lord Napier and Ettrick (who was at the time the Master of Napier) were sequestrated under the Bankruptcy

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Acts on 7th December 1894. Upon the death of his father on 19th December 1898 he succeeded to the entailed estate of Thirlestane as heir of entail in possession.

On 13th March 1899 the trustee in the sequestration presented this petition for disentail of the Thirlestane estate, in virtue of section 18 of the Entail Act of 1882, which enacts among other things that if the estates of an heir of entail in possession shall be sequestrated for debt incurred after the passing of the Act (which is the case here), ‘the trustee on his sequestrated estates shall be entitled to apply to the Court for authority to disentail the estate, and the Court shall forthwith proceed in the same manner as is directed in this section with regard to the application of a creditor.’

The petition was duly advertised and intimated, and it was served upon Lord Napier and upon the three next heirs—namely, his two sons and his brother. Since then his eldest son, the Master of Napier, who is heir-apparent under the entail, and whose consent alone would have been necessary to a disentail, has had a son born to him, and a curator ad litem has been appointed to the infant heir.

The case now comes up on an interim report by Mr Cook, W.S., as to the security which is to be given for the value of the expectancy of the heir-apparent. But a preliminary objection has been stated for the heir-apparent and his infant son, which must first be considered.

Their contention is that a petition by the trustee in a sequestration, presented under the provisions of the 18th section, which I have quoted, is to proceed in all respects in the same manner as a petition by a creditor under the prior part of that section; that upon the presentation of such a petition there must in all cases be a delay of three months before intimation is given to the heirs whose consent must be obtained or dispensed with; and that no such period having been allowed to elapse, the intimations already made do not suffice, and must be made over again. They refer to the case of Baird ( 18 R. 1184), as showing that in such cases the statutory procedure must be rigorously carried out.

The conditions which enable a creditor to disentail are (1) that he has obtained decree for his debt and has charged upon the decree; and (2) that the debt shall not have been paid for six months after the expiry of the charge. He may then present his petition, ‘and the Court shall, if the said debt is not paid within three months after the date of the application, order intimation to be made to the heirs whose consent must be given or dispensed with,’ and if any such heir refuses to consent, the value of his expectancy is to be ascertained.

This, it is said, contemplates such a petition lying dormant after its presentation until after the lapse of three months, when (if the debt has not then been paid) the usual service will be made upon the next heirs. The statute does not say that the usual first order (for intimation, advertisement, and service) shall not be made in ordinary course at once; and as the heirs whose consent is required are always the three next heirs, or some of them, service upon these heirs in ordinary course would amount to intimation of the petition to them. But whether such order is pronounced or not, it is contended that when the three months have expired without payment, ‘intimation’ must thereafter be made to the heirs whose consent requires to be dealt with. I suppose that where a creditor petitions, it was thought proper that all interested should have an opportunity of procuring payment of the debt charged for, so as to obviate the drastic remedy of disentail. Certainly it would be right that the heir in possession whose debt it is should have the earliest intimation of the petition. But the next heir may also have an interest in seeing the debt paid; and yet the statute does not in terms provide for any intimation to him until after the lapse of three months from the presentation of the petition. Probably in such a case the usual first order would be pronounced as matter of course, including an order for service upon the next heirs; and then, after the lapse of three months without payment, a special intimation would be made, in terms of the words I have quoted, to those heirs only whose consents are required to be dealt with, certiorating them that if they did not consent the Court was now to proceed to value their expectancy. At all events, in the case of a single creditor petitioning, the statute provides for a delay of nine months from the expiry of the charge before the present stage is reached; and I assume that the object is to enable anyone whom it may concern to pay off the debt.

Now, in the case of a trustee in bankruptcy petitioning, the statute requires that ‘the Court shall forthwith proceed in the same manner as is directed in this section with regard to the application of a creditor.’ Prima facie, I think this is a direction to proceed without any delay, and in particular without the delay of three months after the petition is in Court. The lapse of six months after the expiry of the charge in the other case has no counterpart in the case of a trustee petitioning; and when the petition is presented the Court is to proceed ‘forthwith.’ It appears to me that the construction contended for by the respondents takes all significance out of that important word. Moreover, while the Court is to proceed ‘in the same manner’ as is directed in the other part of the section, I doubt if these words are appropriate to include the condition, ‘if the said debt is not paid within three months after the date of the application.’ I therefore hold that no further intimation is required.”…

The respondents, the Master of Napier and the Honourable Frederick William Scott Napier, reclaimed, and argued that the procedure laid down in section 18 as applicable to the case of an application for disentail by a single creditor was by the terms of the last clause of that section also applicable in the case of a petition by a

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trustee in bankruptcy. It was therefore necessary that the first step in the procedure, after an order for intimation and service, should be an order for intimation to the heirs whose consents must be given or dispensed with, and that order could not be pronounced until three months after the presentation of the petition. That delay was given to the bankrupt or to the next heirs to give them an opportunity of paying the debts and averting the disentail. Here the Lord Ordinary had proceeded without giving such intimation, and his interlocutor must therefore be recalled.

For the petitioner it was argued that the provision as to intimation three months after the date of the petition to the heirs whose consents must be given or dispensed with was only applicable to the case of a petition by a single creditor.