BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Abernethie v Forbes. [1835] CA 13_263 (16 January 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0263.html Cite as: [1835] CA 13_263 |
||
[New search] [Help]
Page: 263↓
Subject_Entail—Writ—Stat. 1696, c. 25—
An entailer, after subscribing a deed of entail before witnesses, which was blank in one member of the clause of destination, and referred to heirs to be named by any writing under his hand (which was to be held part of the deed), wrote a letter to his agent, directing him to fill up the blank with the name of a certain party, and also to fill in the testing clause, which was done accordingly—held, in an action, by a substitute heir, of declarator of validity of the deed against a prior heir, that, as the blank was posterior to the substitution in favour of the pursuer, and the deed of entail was otherwise complete, it was irrelevant to plead in defence that one member of the destination was blank at the time of executing the deed. 2. Question, whether the substitute whose name was filled in was effectually called as an heir-substitute.
In December, 1814, a crown charter of resignation of the lands of Balbithan was expede in favour of the late William Forbes in liferent, and Major-General Forbes in fee. It purported to proceed upon a procuratory of resignation, contained in a deed of strict entail, of Balbithan, executed by the late General Benjamin Gordon, in 1803. Infeftment followed on the charter. The destination, ex facie of the deed of entail, after General Forbes and the heirs-male of his body, was to “Benjamin Abernethie
It appeared that, on the 20th of July, 1803, General Gordon wrote the following holograph letter to his agent in Aberdeen, who had prepared the deed of entail:—“I send you by the bearer my disposition and deed of entail, as made out by you, signed by me at Balbithan this 20th day of July, 1803, in presence of Alexander Williamson, my servant, and Archibald M'Gillavray, in Balcraig, witnesses; which you will please cause your clerk, Lewis Nicoll, fill up according to form. You will likewise cause fill up the blank in the line of succession with the name and designation of Sir John Gordon, captain and lieutenant in the Coldstream regiment of guards. This will be called for in a few days.” Lewis Nicoll was the writer of the deed. He extended the testing clause, and at the same time filled up a blank then standing in the line of succession in the deed, with the name of Sir John Gordon, according to the tenor of General Gordon's letter. This substitution was posterior to that in favour of Benjamin Abernethie. The deed of entail was found in General Gordon's repositories after his death, which occurred in November, 1803. It was recorded in the register of tailzies in 1804.
After the death of William Forbes, Major-General Forbes expede a service as heir of line to General Gordon, and raised a reduction of the deed of entail. The action proceeded in absence of the defenders. The reasons of reduction libelled, were, inter alia, “When the said deed and disposition was signed by the said General Benjamin Gordon, the alleged granter thereof, and by the witnesses who are said to attest his subscription, the destination, at least a great part thereof, and many other important parts of the deed, were in blanco, and were filled up at a future period; and the alleged witnesses neither saw the granter subscribe the said deed and disposition, nor did they hear him acknowledge his subscription.” “The charter (of resignation) and infeftment are inept, by reason that General Benjamin Gordon, the granter of the said disposition and deed of entail (which is assumed as the warrant of the charter), was himself the institute; and the charter, though proceeding in favour of a substitute heir, is not connected with its warrant by any general retour, or other title therein recited, or even referred to, or in existence; and thereby, on that separate ground, the said charter, and the sasine following thereon,
In this reduction, the Lord Ordinary found “that there was a blank in the deed of tailzie challenged, at the time it was executed, and that an important clause was afterwards inserted in the blank space;” and, therefore, reduced in terms of the libel. General Forbes then obtained a precept from Chancery, under which he was infeft in Balbithan in fee simple.
In 1833, Benjamin Abernethie, the next substitute after General Forbes, and the heirs-male of his body, raised a reduction of the above decree; and also of both the infeftments, which had been expede, in favour of General Forbes. He concluded for declarator that the entail was valid and effectual, at least as to every interest conferred on him; that General Forbes had committed a contravention, and incurred an irritancy, and that the lands had devolved on him, the pursuer, or at least that General Forbes should be decerned to make up titles under the entail, the first infeftment which was expede in his favour, having been inept.
Pleaded by the Defender—
1. After the date when the entailer had signed the entail at Balbithan, no addition to the destination was effectually made. The deed bore to be a probative writ, before witnesses. But if a new substitute was inserted ex intervallo, and without the witnesses' knowledge, the instrument remained no longer the deed attested by them. The whole deed was thereby vitiated, as it was against public policy to let in an enquiry after a lapse of years, in order to prove how much or how little of the instrument had been completed at the date of their attestation. At least, the deed was as defective still as if the blank which existed at the date of the attestation of the granter's signature had never been filled up.
2. The deed was null under the statute 1696, c. 25, being delivered while blank in the name of a person in whose favour it was conceived.
3. The holograph letter of the entailer showed that it was his intention to insert Sir John Gordon in the destination, and that without him the destination was not that in whose favour the entailer had executed his deed. The object of any entailer was to destine an estate along a certain series of heirs, the last of whom alone could take it in fee simple. The disponee, in a deed of entail, was therefore not the institute singly, nor any portion of the substitutes, but the whole favoured line of succession; and, if the granter's intention in favour of one or more of the members of this line of succession was defeated, quo modo constat, that he would ever have executed the deed of entail? And how could it be sustained, without the Court supporting a deed for the party, such as he had never intended to make for himself?
4. The titles in 1814, which had been made up under the entail, were
Pleaded by the Pursuer—
1. The name of Sir John Gordon was effectually inserted in the deed of entail, under the authority of the holograph letter of the entailer. But, even if the destination were still held as blank in that clause, the combined effect of the holograph letter of the entailer, and the relative deed of entail, would produce the same legal result as if the name of Sir John Gordon had been inserted in the entail from the first.
2. The deed was not delivered till after the entailer's death, at which time it contained all the members of the destination.
3. It was immaterial to the pursuer whether Sir John Gordon was effectually substituted or not. He was posterior to the pursuer, and the destination in the pursuer's favour could not be evacuated by any failure to make an effectual provision for the interest of a party whom the entailer had absolutely postponed to the pursuer. 1
The Lord Ordinary pronounced this interlocutor:—“In respect that the blank which is said to have existed in General Gordon's entail at the time of its execution was in a part of the substitution posterior to that in which the names, both of the defender and the pursuer in the present action, were inserted, and that the said deed of entail was otherwise perfect and complete, finds, that the existence of such blank did not affect the validity of the deed as to these parties, and that the defender was not entitled to pursue and obtain the decreet of reduction in absence now challenged, or to make up the titles in fee-simple sought to be reduced in this action; and therefore reduces and decerns in the reductive conclusions, in so far as the interest of the pursuer is concerned, or may require: But as no appearance is made for Sir John Gordon, whose name is said to be improperly filled up in the blank, contrary to the provisions of the act 1696. c. 25, finds it unnecessary to determine whether such filling up, or the holograph letter by which such filling up was authorized, would effect or import a valid substitution in favour of the said Sir John Gordon, or of any substitute called after him in the order of succession; and supersedes the consideration of the other conclusions of the libel as to the defender having incurred an irritancy, and the pursuer being entitled to enter to possession of the estate, till this interlocutor, and the decreet of reduction therein contained, shall be final; and supersedes also the question of expenses.” *
_________________ Footnote _________________
1 Cairns, Dec. 21, 1742 (1673); Kennedy, July 13, 1722 (1681); Donaldson, July 12, 1749, V. Supt 236; and Kilk. v. Blank Writ. No. 2.
* “The alleged falsity of the date of the entail, which was one of the rationes decidendi in the original decreet of reduction, having been judicially abandoned by the defender, the question came to turn entirely upon the bearing of the Act 1696, c. 25, upon a case like the present.
“There was much learned argument before the Lord Ordinary, on the question, Whether the act could at all apply to this instrument, in respect that the blank was regularly filled up before delivery? and also on the question, Whether the filling up unico contextu with writing the testing clause, and in virtue of a holograph mandate by the granter, was not a filling up authorized by the statute? and Whether that holograph mandate was not of itself a valid substitution in favour of the party named therein?
“There were many points of difficulty in this part of the argument; and if the Lord Ordinary had thought it necessary that they should be determined, before justice could be done between the present parties, he would probably have adopted the suggestion made by the defender, and reported the question upon Cases to the Court For the reason assigned in the interlocutor, however, he did not think this necessary. In a question with Sir John Gordon, it would probably have been indispensable; but, as between the present parties, there seemed to him to be clear and sufficient grounds for decision, apart altogether from those more difficult enquiries.
“It was thought, in the first place, to be clear enough, that, though the act bears generally that the deeds against which it is directed ‘shall be declared null,” this truly means only that they shall be null as to the persons whose names were improperly inserted in the blanks, and that the effect of this nullity on the other parts of the deed shall be determined on the ordinary principles of law. The whole of the decided cases support this construction, as well as the preamble of the statute, and justice, and the reason of the thing. The evil intended to be remedied was, the risk of fraud from the prevailing practice of passing bonds blank in the name of the payee from hand to hand, as bills of exchange now pass with blank indorsations; and the case contemplated by the statute, and to which its terms are accommodated, was that of one or a number of conjunct payees so filled into the blank, by the annulment of whose rights the instrument itself of course became null. But when the statute came to be practically extended (for which there was no doubt sufficient warrant in its words) to deeds of entail with a variety of substitutions, and to other complex instruments, under which diverse interests were provided to diverse persons, it would plainly have been carrying the remedy far beyond the evil, and in fact creating a much worse evil, to have found the whole deed null and unavailing to the parties primarily favoured, on account of blanks in the nomination of postponed parties, or parties for whom separate benefits were intended,—to have annulled the right of the institute, for example, because the name of the fiftieth substitute was filled into a blank; or disappointed the claim of the assignee of £100,000, because the name of a legatee to whom he was directed to pay £5 was in a similar condition. Accordingly, in the case of Kennedy (July 13, 1722; Mor. p. 1681), which seems to have been very carefully considered, and where the question was as to the validity of a substitution filled into a blank, it is assumed on all hands that the disposition itself, and the institution therein contained, was liable to no objection. And the Lords accordingly found in express terms, ‘that it must still be looked on as blank in the substitution.’ And this judgment having become final, the case ultimately ends by sustaining the docquet, by virtue of which the blank had been incompetently filled up, as ‘of itself importing a substitution in favour of the persons therein named.’ And the Lord Ordinary has not been able to discover that the soundness of this decision, or the principles involved in it, has ever been judicially questioned.
“The defender indeed seemed ultimately to admit, that these were the principles on which the present case was to be decided; and his main argument was, that though the nullity of a substitution might not affect the institute or prior substitutes in a disposition in fee-simple (which was the case of Kennedy), the principle failed in its application to cases of strict entail, where all parties were burdened in favour of the whole substitutes; and the right of these called first made truly conditional, on the succession being secured to those named after. Quomodo constat, it was asked, that General Gordon would have devised his estate to the pursuer, if he had been aware that the succeeding destination to Sir John Gordon was not to be effectual; and how does the nullity arising from this blank differ from a vitiation in substantialibus, the effect of which extends to every part of the instrument?
“The Lord Ordinary has not been moved by these arguments.
“The case of vitiation he thinks does not apply: both as affording far stronger presumption of actual fraud than the mere occurrence of a blank; and from the circumstance of its generally making it uncertain what the original tenor and import of the deed truly was; and, even in cases of vitiation, the parts of the deed not affected by that in which the vitiation occurs, have often been found effectual; Keir v. Pardowie, 1597, Morr. p. 17062; Johnston, 1688, Morr. p. 17063; Kemps, 2d March, 1802, Morr. p. 16949.
“The principle is scarcely affected by the distinction chiefly relied on by the defender, between deeds of entail and dispositions in fee-simple containing substitutions. In fact, they differ only in the power of those who take first in the latter case, to disappoint the substitution. In both these, there is a benefit provided for the substitutes—and a purpose in the maker of the instrument to confer such benefit. If the whole instrument, therefore, is to be annulled, in either case, because that purpose is defeated, it should be annulled in both cases. If it can be competently asked in this case, quomodo constat that General Gordon would have made an entail at all, if he had not relied on the substitution to Sir John Gordon being effectual, it might as well have been asked, in the Balterson case, in 1722, quomodo constat that Hugh Kennedy would have made a disposition of his estate, if he had not relied on the substitution to John Kennedy being effectual?
“But, in truth, all this ground of pleading is fallacious. There may be blanks (or other nullities) occurring in such parts of a deed as to make the whole null—a blank in the name of the property disponed would be of this nature, though not under the act 1696; a blank in the name of the disponee, where there was no substitution, would be equally fatal, both under the act and at common law; and probably a blank in the name of the institute would be in the same situation. But it is extravagant to maintain that all blanks which vary the deed from what it would have been, if they had been originally filled up, must have this effect; and it seems safe enough to say, that such blanks shall only annul the clauses or provisions in which they occur, and those to which they directly and specially apply—and that all the other parts of the deed, in which a clear and complete purpose is aptly expressed shall have effect.
“It would no doubt happen, that, in this way, the deed which ultimately takes effect will not, in all its parts, be the deed which the maker intended or expected to take effect; and that the question, quomodo constat that he would hare made the deed which does take effect, can never be answered with absolute and precise certainty. But, on the whole, justice is better done by giving effect to such parts (being the main and principal parts), as he plainly intended and wished to take effect, than by annulling and disappointing the whole of his intention, on account of the unforseen failure of a subordinate part. The leaning of the law is, ut res magis valeat quam pereat; and that utile per inutile non vitiatur. If the defender's doctrine were to be adopted, how should a general disposition, in which heritage is incompetently devised along with moveables (as on deathbed or by deed testamentary) be sustained as to the moveables, though annulled as to real estate? In the greater part of such cases, the question of quomodo constat might be put with infinitely greater force than in the present. The purpose of the maker not being merely defeated as to some subordinate or postponed interest, but the most unjust and aburd, and certainly unintended, distribution of his property being thereby effected. The same principle, indeed, would defeat the rights of all heirs of entail, not alioqui successuri, who now get rid of the fetters, and turn themselves into proprietors in fee-simple of estates, which they never were intended to hold on such conditions. If the failure of one substitution, by its being written on a blank, is held a ground for reducing the whole deed, because it is not absolutely certain that the granter would have made it without that substitution—what shall be said of the failure of all the substitutes, and all the conditions, without which it is nearly certain that no such destination would ever have been made to the prejudice of the heirs of line? The answer in both cases is, that what is effectually done by any deed shall stand and take effect, although other things, which were intended to stand along with it, have been found ineffectual; and courts of law, in so deciding, do not make a new deed for a party, but merely give effect to as much of his deed as the law can regard as subsisting.”
The defender reclaimed on the merits, and the pursuer also reclaimed, for the purpose of having the decerniture of reduction expressed in more
The Court (without calling on the pursuer's counsel) refused the reclaiming note for the defender, reserving the question of expenses. Under the reclaiming note for the pursuer, their Lordships modified the terms of decerniture in the reductive conclusions, according to the tenor of an interlocutor concerted by both parties. *
_________________ Footnote _________________
* There was no written argument in this case, and the record was closed on summons and defences.
Solicitors: J. and W. Dymock, W. S.— Cranstoun, Anderson, and Trotter, W. S.—Agents.
