Scottish Court of Session Decisions

The pursuer brought this action to have his right to the Mar estates declared preferable to that of the defender.

The whole circumstances involved in the case are fully narrated in the Note to the Lord Ordinary's interlocutor, and in the opinions of the Judges on advising the case.

On 28th January 1873 the Lord Ordinary ( Shand) pronounced the following interlocutor:—“The Lord Ordinary having considered the cause, finds that the defender, as the nearest heir-male of the body of Lady Frances Erskine, has right to the estates in question by virtue of the destination contained in the deed of entail libelled: Finds that the pursuer, as an heir-female or heir whomsoever of the body of the said Lady Frances Erskine under the said entail, has no right or title in a question with the defender to the said estates: Sustains the defender's second, third, and fourth pleas in law: Finds that the pursuer has no right or title to insist in the conclusions of the present action, and accordingly dismisses the same, and decerns: Finds the pursuer liable in expenses, allows an account thereof to be given in, and remits the same when lodged to the Auditor to tax and to report.

“ Note.—In the year 1866, on the death of John Francis Miller Earl of Mar and Kellie, without issue, the defender's father, Walter Coningsby Erskine Earl of Kellie, was served nearest and lawful heir-male of taillie and provision in general to him to the Earldom or estates, which form the subject of the present action.

This service was expede under and by virtue of the disposition and deed of entail dated 6th January 1739, and registered in the register of tailzies 10th December 1741 (on the construction of which the questions raised by the present action depend), executed by James Erskine of Grange, Esq., and Mr David Erskine of Dun, one of the Senators of the College of Justice.

The present action has been raised by John Francis Erskine Goodeve Erskine, claiming to be Earl of Mar, for the purpose of vindicating his alleged right to the Mar estates. The declaratory conclusion of the action is to the effect that on the death of the said John Francis Miller Erskine Earl of Mar, his uncle, the pursuer had and still has the sole and exclusive right to the Mar estates, as heir of tailzie and provision to him under the deed of entail above mentioned; and that he had then, and still has, the right to make up all proper titles to these lands as such heir of tailzie and provision, and to enter upon and possess the estates as proprietor thereof. By the reductive conclusions of the action, the pursuer seeks to reduce—(1) The various services and other writs by which the late Walter Coningsby Erskine Earl of Kellie, the defender's father, completed his title to the estates in 1866; and (2) The decree of general service, dated 9th, and recorded in Chancery 20th May 1872, pronounced by the Sheriff of Chancery in favour of the defender, Walter Henry Erskine Earl of Kellie, as nearest and lawful heir of tailzie and provision of his father, the said Walter Coningsby Earl of Kellie, under the deed of entail above-mentioned.

The action is maintained on the footing and averment that the pursuer, as heir of line, succeeded to the title and dignity of Earl of Mar upon the death of the late John Francis Miller Erskine, above-mentioned, his uncle; and the pursuer founds on a decree of general service in his favour dated 14th February, and recorded in Chancery 4th March 1867, granted by the Sheriff of Chan cery in his favour, by which he was served as one and the elder of the two nearest heirs-portioners of his uncle, the late John Francis Miller Erskine Earl of Mar, above-named.

The defender, the Earl of Kellie, maintains that he is Earl of Mar, and that the claim of the pursuer to that title and dignity is unfounded. The pursuer's claim to the title is based on the allegation that the peerage descends to heirs-general, while the defender maintains his right to the peerage as the nearest heir-male of the last Earl; and the question whether the pursuer has right to the title in preference to the defender is at present sub judice of the House of Lords, and it is said may be decided in the course of the present year.

As the pursuer's claim to the estate in question is rested entirely on the ground of his being the person having right to the title and dignity of Earl of Mar, and as the question whether he has such right cannot be determined by this Court, and may be decided by the House of Peers within a short time hence, the Lord Ordinary was at first disposed to sist the present action until that question should be decided, for if it should be decided against the pursuer, the ground of his claim under the present action would be swept away. The defender, however, objected to this course, and pressed the Lord Ordinary to take up and dispose of his 2d, 3d, and 4th pleas in law. Under these pleas it is maintained that, even on the assumption that the pursuer has right to the title and dignity of Earl of Mar, and that this should be declared by the House of Peers, he has nevertheless no right to the estates in question, inasmuch as the defender is the heir having right to the estates under the destination contained in the deed of entail by which the succession is regulated.

The defender's contention under these pleas is, that assuming the pursuer to be Earl of Mar, he is not the heir called by the destination to the succession of the estates, and that the case stated by him founded upon his being the nearest heir whatsoever of the late John Francis Miller Erskine, or at least the eldest heir-portioner of such nearest heirs whatsoever, is not relevant or sufficient in law to support any of the conclusions of the action. The Lord Ordinary feels that the defender is entitled, as he desires it, to have a judgment on these pleas, as he has a legitimate interest to require that the action shall be now disposed of in place of being sisted, if there are grounds which enable the Court to do so.

In this view the question now for determination is, Whether, assuming the pursuer to be Earl of Mar, as he alleges, he has right to the estates in question under the entail; and the Lord Ordinary is of the opinion, to which he has given effect in the preceding interlocutor, that the pursuer has not such right, but that the defender is lawfully in possession of the estates, as heir of entail under the subsisting destination.

The question thus raised is one entirely as to the meaning and effect of the destination contained in the entail. The pursuer maintains that the destination must be read as carrying the

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estates always to the person who holds the title and dignity of Earl of Mar, while the defender maintains that this is not its true meaning, and that although it may be inferred from one clause in the entail that the granters of the deed had contemplated that the title and dignity of Earl of Mar should accompany the estates, this has not been provided by the destination, which gives him right to the estates independently altogether of whether he has or has not right to the title and dignity.

The entail, which, as already stated, was executed in 1739, was made by James Erskine of Grange and Mr David Erskine, one of the Senators of the College of Justice, after they had purchased the estates from the Commissioners and Trustees for the sale of Forfeited Estates in Scotland. And the destination in the entail was, in the first place, in favour of Thomas Lord Erskine, only lawful son of John, then late Earl of Mar, and eleventh Lord Erskine (who was attainted in 1715, and whose estates had been in consequence forfeited), and the heirs-male lawfully to be procreate of his body, whom failing, to the heirs whatsomever descending of the said Thomas Erskine his body. Thomas Lord Erskine died without issue in 1766, and the branch of the destination which then took effect, and is now subsisting, is in the following terms:—‘Whom failing, to Lady Frances Erskine, his sister, and the heirs-male to be procreate of her body, whom failing, to the heirs whatsomever of her body.’

The defender is the nearest heir-male of the body of Lady Frances Erskine. This is instructed by the services produced, and the relationship on which these services proceed is not disputed by the pursuer, nor is it disputed that the defender is the nearest heir-male of Lady Frances Erskine and of the late John Francis Miller Earl of Mar, whose right to possession of the estates during his life is admitted by both parties. The pursuer, on the other hand, is somewhat nearer in degree of relationship to John Francis Miller Earl of Mar, but he is an heir-female, and not an heir-male of the body of Lady Frances Erskine, nor an heir-male of the late John Francis Miller Earl of Mar. As in the case of the defender so in that of the pursuer, his alleged relationship or propinquity is not disputed.

Further, if the destination were alone to be looked at, it seems to be quite clear that the pursuer has no right or title to the estates in a question with the defender. The destination itself is expressed in clear, distinct, and ordinary language, and carries the estates, in the first place to the heirs-male of the body of Lady Frances Erskine, in preference to the heirs-female or heirs whatsoever of her body. The defender is called to the succession as an heir-male under this destination, and until such heirs-male are exhausted, the pursuer, as an heir-female, has no place in the destination. The two branches of the destination are separated by the ordinary term ‘whom failing,’ denoting that the heirs-male, of whom the defender is one, must be exhausted before an heir-female can claim right to the estates.

Accordingly, it was pleaded for the pursuer that the destination is controlled by other clauses in the entail, and that in respect of these clauses its language ought to receive a different meaning from that ordinarily given to it in similar deeds; and that the effect of these other clauses is to call under the destination an heir-female of the body of Lady Frances Erskine possessing the title and dignity of Earl of Mar, to the exclusion of an heir-male who is not in possession of that title and dignity. It was not disputed by the counsel for the defender that it is possible from other clauses in the deed to ascertain that the terms used in the destination are to be taken in a different signification from that which ordinarily attaches to them; but it was disputed that there are any clauses having such an effect in the present deed.

The clauses founded on by the pursuer as having the effect of thus interpreting or controlling the ordinary meaning of the words of the destination, were, in the first place, the narrative of the deed quoted in article 14 of the condescendence; and, in the next, the provisions narrated in condescendence, articles 16 and 18, to the effect that the heirs of tailzie who should happen to succeed to the estates by virtue of the above destination should be obliged in all time after their succession to assume and constantly use and bear the surname of Erskine, and in case the attainder of the said John, late Earl of Mar, should be reversed, the title, dignity, and honours of the family of Erskine of Mar, and the arms thereof, as their own proper surname and arms in all time thereafter; and the relative provision, that if the heirs of entail succeeding to the estates ‘shall fail to assume, use, and bear in all time thereafter the surname and arms above written’ (here follow a reference to the contraventions of the general prohibitions in the entail, and a relative clause of irritancy), ‘but also each person or persons so contravening or failing to fulfil the above written conditions and provisions, or any of them, shall, for themselves only, ipso facto annul, loose, and forfeit their right and interest in the said lands and estate, and the samen shall become void and extinct, and it shall be lawful for the next heir of tailzie who would succeed if the contravener were naturally dead, albeit descended of the contravener's own body, to obtain and pursue declarators upon the contravention or failing to fulfil any of the saids provisions or conditions, or obtain adjudications of the foresaids lands and estate, or to obtain themselves served, retoured, entered, infeft, and seased therein as heirs to the person who died last vest and seased in the samen before the contravener had right, in respect that the right of the contravener is hereby declared to become void and extinct, as said is, and the right of succession to the foresaids lands and estate is hereby provided to devolve and pertain to the next heir of tailzie for the time, when the said declarator, adjudication, or service, and retour, or legal mean for establishing the right of the said tailzied lands and estates in their person, shall be used and obtained.’

The Lord Ordinary is of opinion that these clauses do not affect the destination of the estate, as is maintained by the pursuer, the narrative of the entail having reference to the obligation which the entailers, as purchasers of the estates, had undertaken to entail. The residue which remained after payment of certain debts specifies the destination to be one, ‘in favour of Thomas Lord Erskine, and the heirs of his body; whom failing, to any lawful sister of the said Thomas Lord Erskine, and the heirs of her body,’ and so on with the different branches of the destination, without indicating that the heirs-male of each stirps were to be exhausted before the heirs-female

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of that stirps should be called to the succession. This, however, is in no respect inconsistent with what was actually done by the destination in the present case, in accordance with the usual practice in entails of large estates. The heirs of the body of each stirps are called as the obligation provided, but they are called in a certain order, which is quite consistent with the terms of the obligation. Again, the clause which provides that the heirs of entail shall use the arms of the family of Erskine and Mar, in so far as the same could be legally and warrantably used, and the title, dignity, and honours of the family in case of the reversal of the attainder of John Earl of Mar, is introduced, not as affecting or controlling the clause of destination, or the meaning of the particular terms there used descriptive of different classes of heirs, but for a different purpose, and it cannot, in the opinion of the Lord Ordinary, have that effect. If it had been the purpose of the entailers that the estates should only descend to the person in right of the title in the event of the attainder being reversed, it is only reasonable to believe that this would have been expressly provided by some words or clause directly quallifying the destination itself; and this all the more that the language of the destination, without any such qualification, is perfectly clear in calling the different heirs in a definite order, heirs-male taking before and to the exclusion of heirs-female. The Lord Ordinary is of opinion that the clause in question does not affect the meaning of the destination, or the order of heirs thereby called, and that its true meaning and effect is to impose upon the heirs of entail the obligation of using the arms, and title, dignity and honours of the family of Erskine of Mar in so far as they can lawfully and warrantably do so. The present action is not designed, or, as the Lord Ordinary thinks, suited, to try the question whether an heir in possession, like the defender, under the destination, would contravene the entail and be liable to an action of forfeiture in respect of his failure to use the arms, and title, and dignity of the family of Mar, provided he was not in fact entitled to use these arms, and title, and dignity. That question can only be properly tried in an action of contravention and forfeiture, and the Lord Ordinary will merely observe upon it here, in the first place, that the clause of forfeiture is very limited, and does not in its terms refer to the title and dignity of Earl of Mar at all; and further, that the argument of the pursuer has failed to satisfy him that an heir of entail in possession of the estates could be held to have contravened the entail by failure to use the arms and dignity of the Earl of Mar, if he were in a position to show that he had a lawful excuse for not using these, in respect that he was not entitled to do so, and that the title and dignity belonged to another person. Reference was made for the pursuer to a number of cases, and in particular to the following, viz., Sutherland, 1801, Mor., voce Tailzie, Appendix No. 8; Leslie, 1774, 6 Paton, 792; Lockhart, 1842, 1 Bell's Appeals, 202; Braid v. Ralston and Waddell, 22 D., 433; and Forbes v. Clinton, 1868, 6 Macph., 900. It appears to the Lord Ordinary, however, that none of these cases affect the decision of the present. In the first of them it is true that the destination in the dispositive clause was interpreted and affected by another clause in the entail, viz., the procuratory of resignation; but the destination itself was there repeated in terms which showed the meaning which the entailer applied to the dispositive clause. In the various other cases referred to the meaning of the terms used in the destination was gathered mainly, if not exclusively, from the terms and structure of the clause of destination itself; and in none of the cases was plain and ordinary language, such as is used in the present entail for the purpose of calling heirs-male in preference to heirs-female, held to be controlled or affected in such a way as to reverse the order in which the heirs are called, which would really be the result of the pursuer's argument.

On the whole matter, therefore, the Lord Ordinary has come to the conclusion that, whether the pursuer shall succeed in establishing his right to the title and dignity of Earl of Mar or not, he has no title to the estates held under the entail, in a question with the defender, who is an heir called before him under the destination.”

The pursuer reclaimed.

At advising—