Scottish Court of Session Decisions

The Entail Amendment Act 1848 (11 and 12 Vict. cap. 36), sec. 3, enacts—“It shall be lawful for any heir of entail, being of full age and in possession of an entailed estate in Scotland holden by virtue of any tailzie dated prior to 1st August 1848, to acquire such estate, in whole or in part, in fee simple.… Provided always that such heir of entail in possession … shall have obtained the consents of the three nearest heirs who at the said dates are for the time entitled to succeed to such estate in their order successively immediately after such heir in possession, or otherwise shall have obtained the consents of the heir-apparent under the entail and of the heir or heirs in number not less than two including such heir-apparent, who in order successively would be heir-apparent …” Section 52—“… The words ‘heir-apparent’ shall be construed to mean the heir who is next in succession to the heirs in possession and whose right of succession, if he survive, must take effect. …”

John George Hay Rackstraw, Sunderland, pursuer, brought an action against Miss Elizabeth Bryce Douglas, Edinburgh, and others, defenders, in which he sought to reduce a decree granted on 14th July 1914 by the Lord Ordinary officiating on the Bills ( Anderson) approving and authorising the recording of an instrument of disentail of the lands of Burnbrae in the county of Dumbarton, of which the principal defender was the heir of entail in possession.

The pursuer averred—“(Cond. 4) On 9th June 1914 the defender, the said Miss Elizabeth Bryce Douglas, presented in the Bill Chamber of the Court of Session a petition under the Entail Acts, and in particular the Act 11 and 12 Vict. cap. 36, sec. 3, and relative Acts of Sederunt, for, inter alia, authority to record an instrument of disentail in order that she might acquire in fee-simple the subjects of the said entail, which then consisted of the lands of Burnbrae and others disponed in the said disposition and deed of tailzie, excepting the portions or rights disponed as aforesaid under statutory powers, and also of the said feu-duties or rents and the investment covered by the said deed of declaration of trust. (Cond. 5) In the course of proceedings following on the said petition a pretended deed of consent consenting to the proposed disentail was granted by the defenders Mrs Agnes Smith Bryce and Miss Janet Bryce. These

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defenders are described in the said petition as the only surviving lineal descendants (other than the said Miss Elizabeth Bryce Douglas) of the entailer and not subject to any legal incapacity. The said Mrs Agnes Smith Bryce was also described in the said petition as the only sister of the said Miss Elizabeth Bryce Douglas, and the said Miss Janet Bryce was described therein as the only surviving child of the said Mrs Agnes Smith Bryce. (Cond. 6) After certain procedure the Honourable Lord Anderson, Lord Ordinary officiating on the Bills, on or about 14th July 1914 pronounced decree in terms of the prayer of the said petition as set forth in the foregoing summons. Thereafter on or about 8th August 1914 a pretended instrument of disentail executed by the said Miss Elizabeth Bryce Douglas, and recorded with the said decree in the Register of Entails on 28th July 1914, was recorded on her behalf in the Division of the General Register of Sasines applicable to the county of Dumbarton. Further, on or about 12th October 1914 there was recorded in the said Division of the General Register of Sasines a pretended said trust-disposition, dated 16th September 1914 (following upon a pretended agreement between them for disentail and re-settlement of the said entailed subjects, dated 29th June, and registered in the Books of Council and Session on 30th July 1914) by the said Miss Elizabeth Bryce Douglas, with consent of the said Mrs Agnes Smith Bryce and Miss Janet Bryce in favour of themselves as trustees for the purposes therein mentioned of the said entailed subjects comprising the lands and others described in the said pretended instrument of disentail, and the said investment. The only beneficiaries under the said pretended trust-disposition are the individual defenders, the said Miss Elizabeth Bryce Douglas, Mrs Agnes Smith Bryce, and Miss Janet Bryce, themselves. It is believed and averred that these defenders also obtained from the trustees under the said deed of declaration of trust a transfer of the said investment, and hold a stock certificate relating thereto in favour of themselves. The said pretended decree, instrument of disentail, agreement, trust-disposition, transfer, and certificate are the writings of which production is called for in the summons. (Cond. 7) The said petition with all that has followed thereon was incompetent and inept. At the date of the said petition the said Miss Elizabeth Bryce Douglas, who was born on 28th December 1832, was not the only heir of entail in existence, and it was accordingly necessary for her, under section 3 of the said Act 11 and 12 Vict. cap. 36, to obtain the consents of either ( a) the three nearest heirs entitled to succeed to the said entailed estates in their order successively immediately after her, or ( b) the heir-apparent under the said entail and of the heir or heirs, in number not less than two, including such heir-apparent, who in order successively would be heir-apparent. The obtaining of the prescribed consents is a condition-precedent to the grant of authority to disentail. As a matter of fact the said Mrs Agnes Smith Bryce was not the heir-apparent under the said entail, and the said Miss Janet Bryce was not the heir who in order after her would be heir-apparent when they granted the alleged deed of consent. ( Ans. 7) … Explained that said petition proceeded under the last alternative of section 3 of the Entail Amendment Act of 1848.… the defenders Miss Elizabeth Bryce Douglas and Mrs Agnes Smith Bryce were past the age of childbearing, and no children could be born to them. The right of succession of the defender Mrs Agnes Smith Bryce if she survived her sister Miss Elizabeth Bryce Douglas was therefore indefeasible, and the right of succession of the defender Miss Janet Bryce if she survived her mother, the defender Mrs Agnes Smith Bryce, and the defender Miss Elizabeth Bryce Douglas, was also indefeasible (Cond. 8) As averred in the said petition, the said Miss Elizabeth Bryce Douglas, Mrs Agnes Smith Bryce, and Miss Janet Bryce are the only surviving lineal descendants of the entailer. The entailer's brothers, the said William Douglas and Joseph Douglas, are dead, and there are no heirs of their bodies. The pursuer is the heir whomsoever of the body of the said Robert Hay, the entailer's nephew, through his (the pursuer's) mother Hannah Hay, and in the event of the defenders, the said Miss Elizabeth Bryce Douglas, Mrs Agnes Smith Bryce, and Miss Janet Bryce dying without leaving issue, he is the heir next entitled to succeed under the said disposition and deed of tailzie. ( Ans. 8)… It is believed to be true that the entailer's brothers William Douglas and Joseph Douglas are dead, but it is not known and not admitted that there are no heirs of their bodies. Not known and not admitted that the pursuer is a lineal descendant of Robert Hay, the entailer's nephew, through his (the pursuer's) mother Hannah Hay.… (Cond. 9) Not with standing that the pursuer's relationship to the entailer as mentioned in condescendence 8 had been intimated to the defender, the said Miss Elizabeth Bryce Douglas, through her law agents, the said petition for disentail was not served upon or intimated to him, and he was not aware of its having been presented until after decree therein had been pronounced.”

The pursuer pleaded—“The requisite contents not having been obtained or dispensed with, said decree was unwarranted, incompetent, and inept, and ought to be reduced, with all that has followed thereon, as concluded for.”

The defenders pleaded, inter alia—“2. The pursuer's averments, so far as material, being unfounded in fact, the defenders should be assoilzied from the conclusions of the summons. 3. The said petition and the procedure following thereon being regular, and the consents as required by law having been obtained thereto, decree of reduction as concluded for should be refused. 4. The defender Mrs Agnes Smith Bryce having been the heir-apparent under the said entail, and the defender Miss Janet Bryce having been the heir who next in successive order would be heir-apparent, the defender Miss

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Elizabeth Bryce Douglas was entitled with their consents to disentail the said lands and others.”

On 20th July 1916 the Lord Ordinary pronounced the following interlocutor:—“Finds that the disentail proceedings mentioned on record were not conform to the statutes in respect that while the decree under reduction authorising the recording of the instrument of disentail executed by the defender Miss Elizabeth Bryce Douglas proceeded on a deed of consent bearing to be granted by the defender Mrs Agnes Smith Bryce as the heir-apparent under the entail, and by the defender Miss Janet Bryce as the heir, who in order successively would be heir-apparent, the said defender Mrs Bryce was not heir-apparent under the entail in respect that the destination in the deed of entail mentioned on record called to the succession before her the heirs whomsoever of the body of the defender Miss Elizabeth Bryce Douglas, and that although the said Miss Elizabeth Bryce Douglas was then of the age of eighty-one years it is not admitted that she was beyond the possibility of having children born to her; that no proof as to the fact is asked or admissible, and that she cannot by virtue of any legal presumption be held to have been beyond said possibility; with these findings continues the cause for further procedure, and grants leave to reclaim.”

Opinion.—“In this action the pursuer seeks to reduce a decree granted by Lord Anderson on 14th July 1914 approving and authorising the recording of an instrument of disentail of the lands of Burnbrae in the county of Dumbarton, the said instrument of disentail itself, and various other writs.

The petition for disentail was presented on 9th June 1914 by the present defender Miss Elizabeth Bryce Douglas, who was the heir of entail in possession, and was then in her eighty-second year. The nearest heir after her then in existence was the present defender Mrs Bryce, who was then in her seventy-ninth year. The nearest heir then in existence after Mrs Bryce was her daughter, the present defender Miss Janet Bryce.

Under the destination there are called to the succession first after Miss Elizabeth B. Douglas the heirs whomsoever of her body. Similarly after Mrs Bryce there are first called to the succession the heirs whomsoever of her body.

The deed of entail is dated and recorded in 1812. On the footing that the petitioner fell to be regarded as still capable of having issue, Mrs Bryce was not heir-apparent, and it was essential to a disentail that the consents of the three nearest heirs then in existence should be obtained, or that their expectancies should be valued and satisfied and their consents dispensed with. The pursuer avers that he is the nearest heir under the destination after Miss Bryce. He was not called as a respondent to the petition.

The disentail proceeded tacitly on the footing that neither the petitioner nor Mrs Bryce were to be regarded as capable of having issue, and therefore (1) that Mrs Bryce was heir-apparent after the petitioner, and (2) that Miss Bryce was heir-apparent after her mother. On this footing there was produced a deed of consent by Mrs Bryce and Miss Bryce by way of proceeding under the last alternative in section 3 of the Rutherfurd Act (11 and 12 Vict. cap. 36). The terms of the petition did not explicitly draw attention to the point now raised—whether Mrs Bryce and Miss Bryce were in their order successively heirs—apparent; it escaped the notice of the reporter, and it thus was not brought under the cognisance of the Lord Ordinary or considered by him, and decree was granted in the usual form on the footing of the statutory requisites having all been duly complied with, following the recommendation in the report.

The ground of reduction now proponed is that according to the law of Scotland the petitioner Miss Elizabeth B. Douglas fell to be regarded in the disentail proceedings as still capable of having issue notwithstanding that she had attained the age of eighty-one, or alternatively that Mrs Bryce fell to be so regarded although she had attained the age of seventy-eight.

This contention by the pursuer is said by the defenders to be repugnant to common sense, inasmuch as in the actual transaction of human affairs outside a court of law it would be taken as a fact of common knowledge and certain that a woman, whether eighty-one or seventy-eight, had outlived her capacity for bearing children. I am of opinion, notwithstanding, that the pursuer's contention is in accordance with the law of Scotland as laid down in decisions which I am bound to follow, and which affirm that there is no presumption in law that a woman is at any age beyond the possibility of having issue. Proof is held to be inadmissible. There is, of course, an original presumption that a woman after the age of puberty is capable of bearing children; and the law as I take it to be settled is that at no age does a counter presumption arise that she has ceased to be so capable. The practical result is that in any case where the capacity of a woman to bear children is a factor in the question at issue the Court must in the absence of admission decide the question on the assumption that the woman, no matter how great her age, is still capable of bearing children.

In some of the earlier cases the question would seem to have been dealt with in a discretionary way. In the case of A nderson v. Ainslie, 1890, 17 R. 337, which was one of a petition under section 27 of the Rutherfurd Act for denuding and conveyance of lands held in trust for the purpose of being entailed, the question was raised sharply for decision. The competency of the petition depended on whether the truster's unmarried daughter Miss Margaret Ainslie, whose heirs of the body were called under the directed tailzied destination, could be regarded as beyond childbearing, she being then in her fifty-eighth year. The Lord Ordinary (Lord Kyllachy) was with the petitioner in her contention that Miss

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Margaret Ainslie might be taken as past the age of childbearing. His interlocutor was recalled, and the petition was refused by the Second Division of the Court. Lord Rutherfurd Clark said—‘The first question comes to be whether we can assume it to be a fact that Miss Ainslie can have no issue. We know nothing more on this subject than Miss Ainslie's age. On the one hand it is plainly a matter on which we could not order inquiry. On the other hand the law has not assigned any age at which a woman is to be held as past childbearing. But if we can neither ascertain the fact by proof nor proceed on any legal presumption, I do not think that we can decide the case on the footing that Miss Ainslie can have no issue. We must assume the possibility of such issue, and by consequence we must hold that the petitioner is neither in form nor in fact the institute of entail.’

The rule thus laid down was followed by the First Division of the Court in the case of Beattie's Trustees v. Meffan, 1898, 25 R. 765, where the question at issue depended on whether two married daughters of the testator Beattie, who were aged 56 and 57 respectively and had children, fell to be regarded as beyond the possibility of having more children. Lord Adam, who gave the leading opinion, after referring to the earlier cases of Lowson's Trustees ( 13 R. 1003) and Urquhart's Trustees ( 14 R. 112), quoted the passage from Lord Rutherfurd Clark's opinion in Anderson v. Ainslie (which I have quoted above) and said—‘In my opinion the law as laid down in the case of Anderson is right and ought to be followed in this case.’ And Lord M'Laren, who gave the only other opinion, said—‘In my view the question in this case is to be solved by the clear and accurate statement of Lord Rutherfurd Clark in the case of Anderson.’ Lord M'Laren went on to say—‘That leaves open for consideration cases in which it may be proved or admitted that the possibility of issue is at an end, but in the absence of such admission or proof I agree with Lord Adam, following upon the case referred to, that the Court cannot order an inquiry into the matter, and at the same time that the Court has, no legal presumption to guide it independent of the facts.’ It is not quite clear to my mind what is the class of possible cases that Lord M'Laren intended to refer where there is proof, as distinguished from admission, that the possibility of issue is at an end, but his Lordship is quite definite in saying that the Court cannot order an inquiry into the matter.

In the subsequent case of Gollan's Trustees v. Booth, (1901) 3 Fraser 1035, Lord Adam reaffirmed the rule of Anderson v. Ainslie, saying—‘I think the more recent authorities hold that a woman cannot be presumed to be past childbearing at any particular age.

The defenders referred to the cases of De la Chaumette, (1902) 4 Fraser 745, and Turnbull's Trustees, 1907, 44 S.L.R. 843. In the first of these cases the Second Division of the Court ( dis. Lord Moncrieff) held that the capital of marriage-contract trust funds destined to the children of a marriage might be applied in the purchase of annuities for the spouses, the wife being nearly seventy years of age and never having had a child. The ratio was that while there was no legal presumption that a woman is at any particular age past childbearing, there was a sufficient presumptio hominis et facti that a woman of the age of seventy or thereby is past childbearing, on which the Court might act in a case where there was no other interest than that of possible issue involved. In the case of Turnbull's Trustees it was held, on caution offered, that testamentary trustees might make payment of the trust funds to the pursuer, the only barrier to whose right thereto was the possibility of her having issue and who was fifty-eight years of age. The ratio was thus explained by the Lord Justice-Clerk—‘There is no doubt that it has long been a fixed doctrine in our law—and the same seems to be the case in England—that there is no age at which a woman is presumed to be incapable of childbearing. Nevertheless the Court have in several cases considered themselves able to allow property which is to all intents tied up when there is practically no possibility of children being born to be divided on security being found to make repetition in the event of a birth taking place. I think we may follow these cases on the present occasion.’

Neither in the case of De la Chaumette nor in that of Turnbull's Trustees did the Judges purport to challenge the rule enunciated in Anderson v. Ainslie and endorsed in Beattie's Trustees that there is no legal presumption that at any particular age a woman is past childbearing, although the adoption of a presumptio hominis et facti in De la Chaumette seems in effect to amount to a refusal to apply that rule in the circumstances which there occurred. In the case of Turnbull the Judges went, as I take it, on the view that where the only interest involved is that of the unborn issue of the woman who may be in question the Court may follow ‘a rule of practice’ ( per Lord Stormonth Darling) and allow trust funds to be dealt with on a discretionary view as to the probability of such issue ever coming into existence. The same view probably underlies the decision in the case of De la Chaumette.

1 am unable therefore to regard the cases of De la Chaumette and Turnbull's Trustees as weakening the authority of the cases of Anderson v. Ainslie and Beattie's Trustees.

I was referred to a number of English cases. The law of England is not directly in point. But from the cases of Jee v. Audley, 1 Cox 324; re Sayers Trusts, L.R., 6 Eq. 319; re Dawson, L.R., 39 Ch. Div. 155; and in re Hocking, 1898, 2 Ch. 567, I should infer that the general rule of English law is the same as that enunciated in Anderson v. Ainslie, although there is a series of cases in the Court of Chancery which, as explained by Chitty, J., in in re Dawson, are cases ‘in which the Court does not assume the impossibility of issue, but as a mere matter of

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convenience of administration regards the high degree of improbability.’ With these Chancery cases the cases of De la Chaumette and Turnbull's Trustees, already referred to, may perhaps be ranked.

Here, however, the interest involved is not that of unborn issue but the interest of a person in existence, the pursuer, who is entitled to appeal in his interest to the rule laid down in Anderson v. Ainslie.

The defenders aver that in point of fact both Miss Douglas and Mrs Bryce was at the date of the disentail proceedings beyond the possibility of having children born to them. They do not ask a proof of this averment, conceding that the Court cannot order an inquiry into such matters as stated in Anderson v. Ainslie. They contend, however, that in the ascending scale of years one ultimately comes to ages at which it may be said to be a fact of common knowledge requiring no proof that a woman is beyond childbearing. They do not, of course, profess to say where the line should be drawn, but they say that the ages of eighty-one and seventy-nine clearly fall on the further side of it. Now this contention seems to me to run directly counter to the proposition in Anderson v. Ainslie, which is that, proof being inadmissible, there is no age at which the law presumes a woman to be in fact beyond childbearing.

I am of opinion therefore that I must sustain the argument for the pursuer.

There remains another question in the case. It is logically a prior question, relating as it does to the pursuer's title and interest to insist in the action, but the parties at the hearing agreed to leave it over. The pursuer avers that he is the third nearest heir in existence under the destination after Miss Douglas, Mrs Bryce and Miss Bryce being the first and second respectively. The defenders do not admit his averment. The question of family relationship thus raised may be susceptible of solution by extrajudicial inquiry, otherwise a proof will be necessary. Meantime I shall make findings and continue the cause for further procedure.”

The defenders reclaimed, and argued—“Heir-apparent” was defined in section 52 of the Entail Amendment Act 1848 (11 and 12 Vict. cap. 36). The two consenters were heirs-apparent. There was a presumption facti et hominis that a woman eighty-one years of age could no longer bear children. The Scottish courts had never laid down the rule that they would always refuse to apply the presumption, notwithstandingthat they had never made a rule that at a certain age a woman could not possibly bear children. Disentail procedure was remedial procedure, relief from the fetters of an entail being given on certain conditions. The Court did occasionally act on its knowledge of natural facts without requiring proof thereof—Dickson on Evidence, sec. 114. It was axiomatic, based on universal experience, that a woman eighty years of age would not bear more children. This did not affect decisions in the cases cited, which dealt rather with doubtful cases where the ages varied between fifty and sixty. Counsel cited Anderson v. Ainslie, (1890) 17 R. 337, 27 S.L.R. 276; Beattie's Trustees v. Meffan, (1898) 25 R. 765, 35 S.L.R. 580; Urquhart's Trustees v. Urquhart, (1886) 14 R. 112, 24 S.L.R. 98; Louson's Trustees v. Dicksons, (1886) 13 R. 1003, 23 S.L.R. 722; De la Chaumette v. De la Chaumette, (1902) 4 F. 745, 39 S.L.R. 524; Turnbull v. Turnbull's Trustees, (1907) 44 S.L R. 843; in re Widdow's Trust, L.R., 11 Eq. 408; Croxton v. May, L.R., 9 Ch. Div. 388.

The respondent argued—The question for consideration here was—What is an heir-apparent in the sense of the Entail Amendment Act 1848? That question was answered in section 52 of that Act. The words used in the definition were “whose right of succession, if he survive, must take effect”; it was “must” and not “may.” The question was purely one of entail law. Both Divisions had laid down that there was no presumption in law that a woman will not bear children beyond a certain age—the First Division in the case of Beattie's Trustees ( cit.) and the Second Division in the case of Anderson ( cit.). Counsel cited the following cases:— Stewart Mackenzie v. Lady St Hilier, (1906) 14 S.L.T. 448; re Dawson, L.R., 39 Ch. Div. 155, per Chitty, J.; in re Hocking, 1898, 2 Ch. 567, per Lindley, M.R., at p. 570; White v. Edmond, (1901) 1 Ch 570; Turnbull ( cit.); Forbes v. Burness, (1888) 15 R. 797, 25 S.L.R. 592.

At advising—