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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Young of Newhall, Esq. v. Margaret, the widow of John Scot Nisbet of Craigentinny, Esq., deceased; Chambre Lewis, Esq., and Thomas Tod, Disponees of the said John Scott Nisbet [1765] UKHL 2_Paton_98 (21 February 1765)
URL: http://www.bailii.org/uk/cases/UKHL/1765/2_Paton_98.html
Cite as: [1765] UKHL 2_Paton_98
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SCOTTISH_HoL_JURY_COURT
Page: 98↓
(1765) 2 Paton 98
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
[M. 15,516, et Fac. Col. iii. 359.]
No. 28.
v.
House of Lords,
Subject_Entails — General Clause — Prohibitions against Sales.—
An entail contained a general clause, prohibiting the heirs from doing any fact or deed in prejudice of the succeeding heirs of entail, but no special prohibition against sales: Held the general clause not sufficient to protect against sales.
In 1722, the deceased William Nisbet of Dirleton executed an entail, containing strict prohibitory, irritant, and resolutive
Page: 99↓
The entail was duly recorded.
By failure of nearer heirs, the estate opened to John Scot Nisbet of Craigintinny, second son of Sir John Scot of Ancrum, by Christian Nisbet, the granter's eldest daughter; and having entered into a contract of sale of the estate with the appellant, the question was, whether the entail protected the estate against a sale ?
Nov. 17, 1763.
The Court of Session held that the entail did not protect against sales.
Against this interlocutor the present appeal was brought.
Pleaded by the Appellant.—It appears from the numerous series of heirs called to the succession, and especially from the clauses whereby the heirs female are obliged to assume the name and arms of Nisbet, as well as from the power reserved to himself, without the consent of his next heir, or any other heir of entail, not only that it was his intention, but that he understood he had actually prohibited the sale or alienation of his estate, by the words which he has used. Undoubtedly the entailer attached such meaning to the following words: “That it shall not be lawful to any of the said heirs male or female to do any facts or deeds in prejudice of the other heirs, their rights of succession;” and this being the case, and this clause being general and comprehensive in its terms, it makes no difference in law or reason, whether every particular act prohibited be expressly enumerated or not, if by the obvious sense and meaning of that clause, sales be clearly and distinctly prohibited. Hence there can be no doubt of the will of the granter; and where it is so clear as in the present case, it ought to form the rule, as it does in every other case, in regard to the construction of a settlement.
Pleaded for the Respondents.—The intention of the entailer can have no place in the construction of entails, which, imposing unjust restraints on property, are no favourites of
Page: 100↓
After hearing counsel, it was
Ordered and adjudged that the interlocutor complained of be affirmed.
Counsel: For Appellant,
C. Yorke,
R. Macintosh.
For Respondents,
Al. Wedderburn.