Scottish Court of Session Decisions

Lord Dundas—The petitioner asks authority to record an instrument of disentail of certain lands in Aberdeenshire. No answers were lodged by the three next heirs of entail, who were duly cited. An affidavit and relative schedule of debts, &c., is produced, setting forth that there are no entailer's debts or other debts, and no provisions to husbands, wives, or children affecting or that may be made to affect the fee of the entailed estates that are not secured by having been placed upon the record, other than those therein specified, which include, inter alia, “a provision for the sum of £9500 granted by the petitioner's immediate predecessor in the entailed estates, the late Mrs Isabella Crawford Leslie, by bond dated 2nd March 1885, in favour of her two younger children Mrs Margaret Elizabeth Gordon and Mrs Isabella Gordon.” A question has arisen as to the extent to which this provision is to be secured, or payment of it to be made, as a condition of the petitioner obtaining authority to record his instrument of disentail. The ladies who are creditors in the bond have appeared by counsel and craved to be sisted as parties to the proceedings.

The material facts are these—In 1878 Lieut.-Colonel Crawford, then heir-apparent to the entailed estates, with the consent of his mother Mrs Crawford Leslie, who was then heiress of entail in possession, granted a bond of annuity and provision in favour of his wife and younger children, under the powers of the Aberdeen Act and of section (i of the Entail Act 1868, the amount of the annuity being £500, and that of the children's provisions £4000, payable one year after his death. In 1885 the said Mrs Crawford Leslie granted an Aberdeen Act bond of provision, revocable in her option, being the bond mentioned in the schedule above referred to for £9500, payable one year after her death to her said younger children Mrs Margaret Elizabeth Gordon and Mrs Isabella Gordon. Lieut-Colonel Crawford died on 5th December 1898, survived by his wife and by certain younger children. In February 1899 his mother, who also survived him, applied to the Court for authority under the Aberdeen Act and the Entail Act 1868, section 6, to charge upon the entailed estate her son's said provision of £4000, and this was done by way of a bond and disposition in security for that amount in favour of the younger children. The widow of Lieut.Colonel Crawford also completed title to her annuity by infeftment. For the reasons explained in Mr Dewar's report, no account was taken in these proceedings of the bond for £9500 of which mention has been made. Mrs Crawford Leslie, the granter of it, died in April 1904, survived by her grandson the petitioner, who succeeded to the entailed estates, and by her two daughters already named. These ladies desire that the proper amount of their provisions under their mother's bond be secured or paid to them before the disentail is carried through by their nephew. The reporter explains that two years' free rental of the estates as at Mrs Crawford Leslie's death would amount to £7087, 2s. 11d.

In these circumstances the question has been raised and argued, whether or not the petitioner is entitled in ascertaining the amount of his sisters' provisions, to deduct ( a) the annuity of £500 to Lieut.-Colonel Crawford's widow, and ( b) interest on his children's provisions of £4000. If the petitioner's contention is correct a sum of £1240 or thereby would fall to be deducted, as explained by the reporter, leaving the amount of the provisions of the petitioner's aunts at £5847, 2s. 11d. or thereby.

The question is I believe a new one, and is not without difficulty. If regard were to be had to the terms of the Aberdeen Act only, the deduction would appear to be a good one, the sums involved being clearly burdens affecting the entailed estate as at the date of the death of the granter Mrs Crawford Leslie, within the meaning of that statute. But one must consider also the language of section 6 of the Entail Amendment (Scotland) Act 1868 (31 and 32 Vict. c. 84), which confers power upon an heir apparent to an entailed estate to grant provisions to his wife and children, with the consent of the heir in possession, to the same extent as an heir in possession may do under the Aberdeen Act. A proviso follows, the full intention and effect of which I have found it difficult to appreciate. It is provided, however, inter alia, that “such provisions to be granted by such heir-apparent shall not interfere with or affect any provisions which have been granted by the heir in possession of such estate, and shall be postponed to the provisions granted by such heir in possession.” … Now it seems to me that the question under consideration may be capable of solution if due regard be had to the words “which have been granted” above quoted. These words must refer to some particular punctum temporis I think that in their grammatical sense, and according to the ordinary use of language, they must be held to refer to the point of time at which the heir-apparent, with consent of the heir in possession, grants his bond of provision. He can grant no bond without such consent. If that be the true sense of the phrase, then in 1878, when Lieut.-Colonel Crawford with his mother's consent granted his bond, there were no provisions which “had been granted” by the heir in possession which could be interfered with, and the result would be that the deduction now claimed by the petitioner is a good one. Another point of time to which the words “have been granted” might be held to refer is the date at which the provisions made by the heir-apparent become payable, viz., in this case a year after the death of Lieut-Colonel Crawford. I do not think that this reading of the words is so natural or proper a one as that above indicated. But the result in the present case would in my opinion be the same; because I do not think

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