Scottish Court of Session Decisions

This petition was presented by his Grace the Duke of Athole for authority to acquire the Athole trust estates in fee simple, in terms of the Acts 11 and 12 Vict., c. 36, and 16 and 17 Vict., c. 94. The petition was presented with concurrence of the three next heirs of entail. Lord Mure having remitted the petition to Mr Kermack, W.S., he suggested a difficulty in regard to the competency of the application, arising out of the fact that the Entail Amendment Act, under which it was presented, had reference solely to tailzies dated prior to 1st August 1848, and it was doubtful whether this tailzie belonged to that class. It appeared that in 1829 John, fourth Duke of Athole, executed an entail of his fee-simple estates, and on the same day executed a trust conveyance of these estates, with a provision in the entail that it should not take effect until the trustees should be able out of the rents of the estates to pay off the debts

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of the truster as the same should be ascertained. The trustees found that the liquidation of these debts in the manner intended was a hopeless and impracticable operation, and they therefore obtained in 1853 the authority of Parliament to their executing an entail of the estates in favour of the last Duke under burden of the debts so far as subsisting. The question, therefore, was whether the true date of this entail was 1830, when the Duke died and his trust deed came into operation, or 1853, when the Act of Parliament was passed. The Entail Amendment Act provides (sec. 28) “that for the purposes of this Act the date at which the Act of Parliament, deed, or writing placing such money or other property under trust, or directing such land to be entailed, first came into operation, shall be held to be the date at which the land should have been entailed in terms of the trust, and shall also be held to be the date of any entail to be made hereafter, in execution of the trust, whatever be the actual date of such entail.”

Lord Mure having reported the point to the Court, Mr Patton was heard thereon for the petitioner. To-day the Court unanimously held that although the point presented at first sight a good deal of complexity, and was most properly brought under the notice of the Court by Mr Kermack, the true date of the entail in the sense of the statute was 1830, when the Duke's trust deed came into operation by his death. The Act of Parliament was really obtained for the purpose of giving effect to the trust deed of 1829, although in consequence of circumstances it was afterwards thought advisable that the trust deed should not be fully carried out. The Act of Parliament only limited the effect of the trust deed, and authorised its being carried out in a limited form.