Scottish Court of Session Decisions

Subject_1 TAILZIE.
Subject_2 SECT. II.

Institute.

Sir William Gordon of Gordonstone
v.
Mrs Lindsay Hay and Others.

Date: 8 July 1777
Case No. No. 69.

Another case in which the institute was found not to be bound by the restrictions of the entail.

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In 1697, Sir Robert Gordon entailed the barony of Gordonstone in favour of himself in life-rent, and his eldest son Robert, and the heirs-male of his body in fee; whom failing, a series of heirs of tailzie, with the usual prohibitory, irritant, and resolutive clauses; but these were only laid on the heirs of tailzie. Charter and infeftment followed in favour of the entailer and his son, and the entail was recorded. On the entailer's death, his son Sir Robert possessed the estate as fiar under the above deed, and in his marriage-contract with Agnes Maxwell in 1734, he declares, “that as by the present investiture of the estate, it is settled on himself and the heirs-male of his body, which secures it, if not altered, to the heirs of this marriage; so in case it shall be in his power, or he shall hereafter think fit to alter the same, he binds and obliges himself to provide the whole lands therein in favour of himself, and his heirs-male of this or any subsequent marriage; whom failing, to any he shall nominate by a writing under his hand, or in case of no such nomination, then to the heirs-male and of tailzie above mentioned.” In 1767, Sir Robert executed a deed of entail of certain other lands called Carbettie, on himself and the same series of heirs as in the entail of Gordonstone executed by his father : But of the same date he executed another deed, which proceeding on the narrative of his powers to alter, declares, that being “resolved to alter the same, in so far as to liberate his second son William Gordon from the whole clauses of said entail; therefore, in case he shall succeed to the entailed estate, he shall be wholly liberated” from all its fetters. In 1771, Sir Robert having altered his intentions, executed a revocation of the entail of Carbettie, and in the same year he granted a disposition of his moveables in favour of Robert his eldest son, in which he expressly declares all former testaments and deeds of settlement made by him to be revoked. He died in 1772, and his eldest son Sir Robert, judging that neither the entail 1697 nor that of Carbettie in 1767 were binding on him, who, as heir-male of the marriage, was entitled to take both estates in fee simple, in virtue of his father's and mother's marriage-contract, expede a general service as heir of provision under that contract, and brought a reduction and declarator for setting aside both the said deeds, against the whole heirs therein named. Sir Robert having died unmarried, his brother Sir William serving heir in general under the contract of marriage, prosecuted the same action. The pursuer's plea was, that in the entail 1697 the prohibitions and restrictions are imposed only on the heirs of tailzie; and as the pursuer's father was institute under that deed, the estate was in his person a fee simple; and that though the entailer's intention might have been to include his son Robert under the description of heir of tailzie, yet entails being stricti juris, intention avails nothing if not habilely executed. If, therefore, Sir Robert was unlimited fiar, it follows, that the contract of marriage executed by him must regulate the succession, and as that deed binds him to vest the lands in the heirs of the marriage without any fetters whatever, the pursuer, as heir of the marriage, is entitled to take these lands as a fee simple. As to Carbettie, as that estate belonged to Sir Robert at the marriage, it is of course included in the provision therein, “of all other lands and estates which then belonged to him.” Besides these grounds, it was urged separatim for the pursuer, that there was an express reservation in his favour; and moreover, that the tailzies were actually revoked. The defence was founded on the clear intention of the original entailer to subject his son to all the restrictions, and consequently the incapacity of the son, by any marriage-contract, to de feat that intention; and that the deeds of revocation applied only to former settlements of moveables, not to the investitures of the land-estates, of which the entails were never per expressum cancelled. The Lords decerned in the reduction and declarator. See Appendix.

Fol. Dic. v. 4. p. 334.