Scottish Court of Session Decisions

This was a petition presented to the Court for the purpose of obtaining authority to record an instrument of disentail of the estate of Muselie and others, under the 3d section of the Entail Amendment Act, 1848, which enables any heir of entail, of full age and in possession of an entailed estate in Scotland “holden by virtue of any tailzie dated prior to the 1st day of August 1848,” to acquire such estate in fee simple, with the consents of the three nearest heirs at the time entitled to succeed after the heir in possession, provided that the nearest heir entitled to succeed after the heir in possession shall be twenty-five years of age.

The entail of Muselie was constituted by two deeds granted by Charles Riddell, Esq. of Muselie, the first being a disposition and deed of tailzie executed on 25th February 1836, and the second a deed of destination and alteration executed on 1st July 1848. By the first of these deeds Mr Riddell, the entailer, disponed the estates to himself and the heirs of his own body, whom failing to John Riddell, his only brother, and the heirs-male of his body, whom failing to a series of other heirs, under the fetters of a strict entail; but reserving absolute power at any time of his life, and even on deathbed, not only to alter the destination, but to recal the disposition in whole or in part, and to deal otherwise with the estate as he might think fit; and by the later deed, on the narrative that his brother and certain of the other heirs had in the meantime died, he altered the destination by disponing the estate of new to Mrs Mary Riddell or Hutton, his niece, in liferent, for her liferent use allenarly, and to the petitioner, George William Hutton, her eldest son, and the heirs-male of his body, whom failing to the other heirs of tailzie therein mentioned, but under the whole conditions, provisions, restrictions, and others contained in the original deed, excepting in so far as the same were thereby revoked and altered. This deed of destination and alteration contains certain relaxations on the provisions and conditions of the original entail, and declares “that the whole conditions, restrictions, reservations, and clauses prohibitory, irritant, and resolutive, contained in the said disposition and deed of tailzie, so far as not herein altered, and the whole conditions, provisions, and restrictions herein written, shall apply to and affect and limit the said George William Hutton, notwithstanding that in form he may now succeed as institute under the said entail, it not being my wish and intention that his powers and rights should be in anyways extended in consequence of the present deed of alteration, but that the whole fetters and conditions

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of the said tailzie shall be applicable to him in the same manner as if he had continued to be a substitute heir of entail, as in the within written deed of tailzie.” The deed of alteration also reserved power to the granter to dispose of the estate at any time of his life, and even on deathbed, in any way he might think fit. This deed and the deed of entail both contain clauses dispensing with delivery, and declaring that the same, and any alterations which the granter might thereafter make thereon, should be equally good and effectual to all intents and purposes as if the same had been fully completed by infeftment, and formally delivered to the heirs of tailzie, or any other person for their behoof.

Mr Riddell, the entailer, died on 11th December 1849. The present application was made on 29th April 1873. On 4th June 1873 the Lord Ordinary, in accordance with the usual course of procedure, remitted to Mr George Dalziel, W.S., to inquire into the circumstances stated in the petition, and whether the provisions of the statutes and Acts of Sederunt had been complied with, and to report.

On 16th July 1873 Mr Dalziel issued a report, in which he raised a question as to what was to be held to be the date of the entail. The portion of the report bearing on this point was as follows:—

“The petition is founded on the statutes 11 and 12 Vict., cap. 36, and 16 and 17 Vict., cap. 94, and particularly on the 3d section of the former and the 4th section of the latter statute.

The disposition and deed of tailzie, and deed of destination and alteration above-mentioned, both contain a reserved power of revocation, which was not exercised by the granter previous to his death further than in so far as the disposition is altered by the deed of destination and alteration; and together these deeds, which are both mortis causa deeds, constitute the entail under which the estate is held. The late Charles Riddell, the granter of both deeds, died on 11th December 1849, at which date his settlements came into operation, though dated prior to 1st August 1848. Tour reporter would submit for your Lordship's consideration whether the entail constituted by these settlements was a subsisting entail at the date of the Rutherfurd Act; and whether, looking to the principle of that Act, it can be regarded as an entail dated prior to the 1st day of August 1848, and so subject to the provisions of the 3d section of the Act.

Looking to the importance of this point, your reporter has thought it right to obtain from the petitioner his views on the subject, and to submit them to your Lordship for consideration.

To enable the petitioner to take advantage of the 3d section of the Rntherfurd Act, it is necessary for him to show that the two mortis causa deeds above referred to, both executed prior to, but not coming into operation until after 1st August 1848, constitute a tailzie dated prior to that date within the meaning of the 3d section of the Act.

By section 1 of the Act it is enacted that ‘where any estate in Scotland shall be entailed by a deed of tailzie dated on or after the 1st day of August 1848, it shall be lawful for any heir of entail born after the date of such tailzie, being of full age and in possession of such entailed estate by virtue of such tailzie, to acquire such estate’ in fee-simple by compliance with the procedure therein pointed out.

By section 3 it is enacted ‘That it shall be lawful for any heir of entail, being of full age and in possession of an entailed estate in Scotland holden by virtue of any tailzie dated prior to the 1st day of August 1848, to acquire such estate’ in fee-simple, by complying with the procedure therein mentioned. The petitioner contends, in the sense of the Acts referred to, and particularly the 3d section of the Rutherfurd Act quoted, that the date of an entail in such a case as the present is the date on which the entail was executed, and not the date on which it came into operation.

In support of this contention he has submitted to your reporter the following considerations, desiring it to be kept in view that the principle of the Rutherfurd Act, and subsequent Entail Acts, and the principle of construction applicable thereto, is to favour freedom from the fetters of entail:—

1. “The petitioner submits that in the Rutherfurd Act a material distinction is drawn between entails dated on or after 1st August 1848 and entails dated prior to that date, and the rights of heirs of entail under the same. The Act, he says, speaks of a ‘deed of tailzie dated on or after’ 1st August 1848. and ‘any tailzie dated prior to’ that date; and the expressions used, he contends, refer to the actual dates of the deeds, and not to any constructive date, excepting only in one class of cases specially provided for by the Act, where a constructive date is to be applied, as will be afterwards adverted to.

He points out that in the general case the Act speaks of entails without making any distinction between mortis causa deeds and deeds inter vivos; and with reference to their date speaks only of when they are dated, without any allusion either to the date of delivery in the case of deeds inter vivos, or to the date when they came into operation in the case of mortis causa, deeds; and maintains that it is irrelevant under the provisions of the Act to inquire either as to the date of delivery in the one case, or as to the date of the death of the maker, which comes in place of delivery, in the other.

[It appears, however, to your reporter that it must be kept in view that until the death of Charles Riddell, his mortis causa deeds had neither the effect of divesting him of his property, nor of investing the grantees with any right or claim under them, and that until his death it was impossible in any view to hold that the lands were subject to the fetters of an entail.]

2. “The petitioner further submits that his view, that the date referred to in the Rutherfurd Act in the general case (and he makes reference specially to section 3d, on which the petition is founded), is the actual and not any constructive date, is further strengthened by a consideration of the provisions of section 28. By this section a constructive date is, for the purposes of the Act, applied to any entail made thereafter in execution of a trust, such constructive date being the date at which the Act of Parliament or deed constituting the trust first came into operation, whatever be the actual date of the entail.

Under that section the petitioner maintains that the constructive date of any entail to which it applies must be before and cannot be after the actual date, and that the provision proceeds on the principle of drawing dack the date of the entail in order to favour freedom from the fetters, which is the leading principle of the Act.

[In regard to this your reporter begs to notice that section 28 is in the following terms:—'And be it enacted that for the purposes of this Act the

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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.’ This section, it will be observed, applies to cases where money has already been placed under trust, and the deed or other writing has come into operation; and it seems to your reporter rather to favour the view opposite to that contended for by the petitioner, viz., the view that until the deeds in question came into operation there was no entail. The petitioner attributes the drawing back of the date of entail to the principle of favouring freedom from its fetters; but keeping in view that the section deals with property placed under trust previous to its date, it would rather seem that the object and effect of the drawing back is to put under fetters property which, but for the enactment, would not be so fettered until the constitution of the entail itself. It must be kept in view that in this provision of the Act the Legislature regards the trust-deed as inoperative until the truster's death; and it appears to your reporter that there can be little doubt that it does so, because the trust-deed is, like the entail in the present case, a mortis causa, deed.]

3. The petitioner also points out that his view is confirmed by section 47 of the Act, where mortis causa deeds are expressly referred to, and where the date of such deeds is spoken of as that on which they are dated, and not that on which they came into operation; and the party who is thereby authorised to acquire in fee-simple the property held under any mortis causa deed, under limitations of entail, is a party of full age, born after the date of such deed, and not after the death of the maker of it, or when the deed came into operation.

[As far as necessary for present purposes, your reporter may further quote the section referred to, which is in the following terms;—'And be it enacted that where any land or estate in Scotland shall, by virtue of any trust-disposition or settlement, or other deed of trust whatsoever, dated on or after the 1st day of August 1848, be in the lawful possession, either directly or through trustees for his behoof, of a party of full age, born after the date of such trust-disposition or settlement or other deed of trust, such party,’ &c. This enactment was passed to prevent the Act being defeated by trusts. It expressly deals with deeds executed after the passing of the Act, and it seems doubtful whether it has any bearing on the question now under consideration.]

4. As further confirmatory of the petitioner's view, he also makes reference to the Entail Amendment Act, 16 and 17 Vict. c. 94, § 8, where, in authorising the application of money held in trust for the purpose of purchasing land to be entailed, the deeds under which the same is held are referred to as ‘any deed executed prior to the 1st day of August 1848.’

The petitioner states that it will be noticed that the deeds to which that section applies may be either deeds inter vivos or mortis causa; and in both cases he holds that it is the date when the deed is executed, and whether executed prior to or on or after 1st August 1848, and not when it comes into operation, that rules the application of the enactment. The petitioner further holds that that section assumes that the date of entails contemplated by the Rutherfurd Act is the date when they are executed, and not the date when they may come into operation.

[“The 8th section referred to is as follows:—'Where under any deed executed prior to the 1st day of August 1848, any money is or shall be held in trust for the purpose of purchasing land to be entailed,’ &c. Looking to the bare words of the section, the use of the word ‘ executed’ seems to favour the petitioner's contention. But if weight is to be given to the marginal rubric of the section, and which in cases of ambiguity it is thought may be read in connection with the section itself, the words, ‘where under any deed executed prior to the 1st day of August 1848, any money is or shall be held in trust,’ are spoken of as ‘money placed in trust prior to 1st August 1848.’ In that view the word ‘executed’ has not the same meaning as ‘signed,’ but infers the trust being in actual operation previous to 1st August 1848.]

5. The petitioner further points out that by the Entail Amendment Act of 1868, 31 and 32 Vict., c. 84, § 17, provision is made for the constitution of liferent interests in moveable or personal estate, by virtue of any deed dated after the passing of that Act; and that it is there parenthetically enacted that the date of any testamentary or mortis causa deed shall be taken to be the date of the death of the granter. He observes that that enactment must be held as applicable only to the deeds referred to in the section, which are deeds relating merely to moveable or personal estate, and dated (in the sense of that section) after the passing of that Act; and that it leaves untouched all deeds relating to heritage, and all deeds dated (in the sense of any of the Acts) prior to the Act of 1868.

[Your reporter does not consider that these views have much bearing on the point in question, but it rather appears to him that if anything is to be gathered from the 17th section of the Act of 1868, it is an additional confirmation of the view that an entail constituted as the present one cannot be held to be a tailzie in terms of the Act until the death of the granter.]

The petitioner contends that the question is not—When did the deeds become a tailzie? but What is the date of the entail? and, in conclusion, he submits that the date of entails contemplated by the Rutherfurd Act, whether contained in deeds inter vivos or mortis causa, is their actual and not any constructive date, excepting only in the class of cases where a constructive date is expressly given by the 28th section of the Act, an exception which, he argues, proves the rule, and an exception which proceeds upon the same principle as the rule—one of the ruling principles of the Act—that of favouring freedom from the fetters of entail.

[Your reporter has been unable to discover any decision exactly bearing on the point raised, and he has therefore thought it right to lay before your Lordship thus fully the petitioner's views in regard to it.] …

On 12th January 1874, the Lord Ordinary pronounced an interlocutor reporting the petition to the First Division of the Court. In a note to his interlocutor his Lordship observed:—“The Lord Ordinary, after consideration, has come to be of opinion that the petitioner is entitled to succeed in

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this application to have the lands and estate of Muselie disentailed. The question involved in the application is, however, of so much importance, that he thinks its decision ought not to rest on the opinion of a single Judge, and as the only mode of securing that his opinion should be reviewed, he has thought it right to report the case. If the application had been simply granted, the interlocutor would have been acquiesced in, and as this course would probably be also followed in other oases coming before the Lord Ordinary involving the same question, it is of importance that the point should now be raised and determined in the Inner House… .

The petitioner can only exercise the power to disentail the estate as proposed if it shall be held that he is in possession by virtue of a tailzie dated prior to 1st August 1848; for if the entail be truly dated after 1st August 1848 in the meaning of the statute, then, under section 1st of the statute, where the heir in possession, as in the case of the petitioner, was born before the date of the tailzie, he must have the consent of the heir-apparent under the entail, and such heir-apparent must be of the age of twenty-five years complete, and born after the date of the tailzie. The petitioner has no issue, and the next heir entitled to succeed after him is his brother.

The question properly raised by the report of Mr George Dalziel, W.S., to whom the proceedings were remitted, is whether the entail can be truly regarded as dated prior to 1st August 1848, when in point of fact the original deed and deed of alteration were at that date lying in the repositories of the granter, subject to his entire control, and did not come into existence as operative deeds until the granter died on 11th December 1849. The Lord Ordinary was at first disposed to take the view which Mr Dalziel has adopted, and to hold that the deed could not be taken under the statute as a tailzie dated prior to 1st August 1848, or prior to the day when it first became operative; and, although executed prior to 1st August 1848, yet, as it had not been delivered, that it could not be regarded as dated prior to its delivery through the death of the granter. But after further consideration of the provisions of the Rutherfurd Act, and of the two Entail Amendment Acts which have been passed since 1848, viz., the 16 and 17 Vict., c. 94, and 31 and 32 Vict., c. 84, he has come to the conclusion that the terms of the third section of the Rutherfurd Act are to be taken literally; and that if a deed of entail has in point of fact been signed or executed before 1st August 1848, although not then delivered, and although it be a mortis causa deed, which might never have come into operation in consequence of a change of intention on the part of the granter, and which in fact did not come into operation till the granter's death, after 1st August 1848, yet, having become operative, it is then to be taken under the statute as of the date when it was signed, and the estate is to be regarded as holden by virtue of a tailzie ‘dated prier to the 1st day of August 1848.’

It is somewhat startling that a deed should be taken as a tailzie prior to 1st August 1848 which did not become an effectual or operative deed at all for years thereafter; but this is only the result of giving to the language of the statute its literal interpretation, according to which the date of signature or execution of the deed is the test to be applied in ascertaining whether the entail is to be regarded as one prior or subsequent to 1st August 1848. The words are—'holden by virtue of any tailzie dated prior to the 1st day of August 1848,’—not by virtue of any tailzie created after 1st August 1848, or by virtue of any tailzie coming into operation after that date or taking effect after that date—any of which expressions would naturally have been used had the Legislature intended that anything should be regarded except the date when the deed was signed.

This literal interpretation of the Act—giving to the terms used their usual and ordinary meaning where that meaning is quite intelligible—must receive effect unless some obvious absurdity or some repugnancy with the purposes of the statute should follow, or unless there be something in other parts of the statute to conflict with the literal interpretation, and to show that a different meaning was intended. The Lord Ordinary does not think any such absurdity or repugnancy results from giving to the word ‘dated’ its ordinary meaning of ‘signed’ or ‘executed,’ and he has been unable to find in the Act any expressions which conflict with this meaning. The statute, which came into force on 14th August 1848, introduced important general rules or provisions applicable to entails, distinguishing between what may be called past or old entails and future or new entails, and it is true that the division to be naturally expected wouid be between entails which came into operation before and after the passing of the Act respectively, or before and after a date fixed by the Act. But just as the statute arbitrarily fixed a certain date as the point of time for distinguishing between old and new entails, so there is nothing absurd or unreasonable in the further arbitrary provision that the date of the deed, and not the date when it came into operation, should be made the criterion by which the distinction should be settled. There does not therefore appear to be any strong or good reason for saying, contrary to the literal interpretation of the words used, that the meaning of the statute must have been that the tailzie should be held as dated on the day when it came into operation, and not on the day of the true date of the deed, viz., the date of its execution. The application of the rule of taking the actual date of execution of the deed as the only criterion, has this to recommend it, that it provides a test which is free from uncertainty, and which admits of being readily applied.

The expression used thoughout the Rutherfurd Act, with the exception of the provisions of section 28th, to be immediately noticed, seem to be always the same, and to distinguish between a tailzie dated on or after 1st August 1848 and a tailzie dated prior to that date. Reference may be made to the 1st, 2d, 3d, 5th, and 12th sections, as illustrating this observation, and as showing at the same time how important it is with reference to other cases which may arise that the statute should receive an authoritative interpretation on the question which has been now raised. The 28th section of the Act (which formed the subject of much argument and consideration in the case of Petition Black, 4th November 1873, 11 Scottish Law Reporter, p. 48), is important in the present question, as showing that when it is intended that the words used in the statute shall not receive their literal and usual signification, this is expressly provided. But for the provisions of that section, it would appear that, for the purposes of the Act, the

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actual date of investment of trust-funds, or at least the date when presumably an investment could have been got, would have been taken as the date at which any entail in pursuance of trust directions should have been made, or as the date of the entail; but the Act has declared that the date at which the Act of Parliament or deed placing the money or property under trust ‘first came into operation,’ shall be held to be the date at which the land should have been entailed, and also the date of the entail. This section also warrants the observation and argument, that where it was intended that the date of a deed coming into force should be the important point of time for the application of certain statutory provisions, or in reference to which certain privileges or advantages were conferred, language apt and suitable for the purpose was used. The words ‘first came into operation,’ would have been quite suitable in place of the word ‘dated’ in the 3d section, and the other sections of the statute to which the Lord Ordinary has referred. Occurring as these words do in this very statute, it is only reasonable to infer that if the Legislature had meant that the date when the deed came into operation should be appealed to, it would have been provided that the powers competent to heirs of entail in possession would have been made to depend upon whether such heirs were in possession of an estate holden under an entail which had ‘come into operation’ prior to 1st August 1848, or on or after that date.

In the case of Black, the date when the trust came into operation was held to be the date of the entail, although the making of an entail at all had been dependent on a contingency. But for the occurrence of that contingency there might never have been an entail; but the contingency having occurred, the entail was then held as of the date of the trust-deed. It is less remarkable to hold, as the Lord Ordinary does in the present case, that an entail which did come into operation shall be held as ‘dated’ on the day when it was really executed, although it depended on a contingency, viz., the final will or intention of the maker, which was not determined for some years thereafter, whether the deed should become an operative entail.

Taking, therefore, the provisions of the Rutherfurd Act alone into view, the Lord Ordinary is of opinion that the petitioner is entitled to have the estates held by him disentailed under section 3d of the statute.

The terms of the provisions of the Act 16 and 17 Vict., cap. 94, appear to confirm and strengthen the view which the Lord Ordinary has taken. In sections 8, 12, and 13, the word ‘executed’ is used in connection with the making of an entail, and for the purpose of distinguishing between old and new entails, in place of the word ‘dated’ and evidently referring to the signature of the deed by the granter.

The deed now under consideration could not, in the opinion of the Lord Ordinary, be taken as a deed ‘executed’ after 1st August 1848, so as to make the provisions of the two last mentioned sections applicable to the estate. This suggests the further observation, that if, in place of the word ‘dated,’ the word ‘executed’ had occurred in section 3 of the Rutherfurd Act, the term executed must have applied to the date of signing, for the execution of the deed is its signature, as ‘the solemnities of execution’ are the requirements of the statutes for the testing of deeds at the time when they are signed or executed.

In section 22d of the Act 16 and 17 Vict., another mode of expression is introduced, viz., ‘under an entail created before the passing of the said Act,’ viz., 14th August 1848. These terms would probably be held to have a different meaning from either of the words ‘dated’ or ‘executed;’ for the expression ‘created,’ as applied to an entail, does not refer necessarily or directly to the act of signature or execution of the deed, but rather to the deed becoming operative. But, however this question might be determined, it does not appear to affect the present question, because the word ‘dated’ has ordinarily a different signification from the word ‘created,’ and the section in which this last-mentioned word occurs relates to a subject, viz., the propulsion of the fee of an entailed estate, which is quite distinct from that of any of the other provisions of the statutes to which the Lord Ordinary has alluded, in which the word ‘dated’ occurs.

The Act 31 and 32 Vict., cap. 84, in its 13th and 18th sections, repeats the use of the word ‘dated’ in the same way as in the Rutherfurd Act; but again, in section 17, as in section 28 of the Rutherfurd Act, an artificial date—if the expression may be used—is introduced by the special enactment ‘that the date of any testamentary or mortis causa deed shall be taken to be the date of the death of the granter, and the date of any contract of marriage shall be taken to be the date of the dissolution of the marriage.’

But for these qualifying and enacting words, it is to be assumed that even in the case of mortis causa deeds, for the purpose of the enactment, they must be taken as being dated on the day when they were signed; and the absence of such qualifying words in section 3d of the Rutherfurd Act leads to the inference that the words used are to be taken in their ordinary and literal meaning.

The Lord Ordinary may further observe, that he does not think the general rule that mortis causa deeds, and at least wills or settlements, are to be read as speaking from the time of the granter's death, affects the view which he has adopted. For, in the first place, this rule is subject to the qualification, that if there are expressions in the will showing that the granter intended to refer only to property, heritable and moveable, with reference to the day of the date of the will, and not to the day of the death, the deed will be so construed, and this shows that the actual date of the deed—that is, of its execution—is often of extreme importance in its consequences. But besides, though it be true that the deed must be read as speaking from the death, it is not a deed ‘dated’ on deathbed, or which can be properly so described. And so, referring to the Scottish law of deathbed, recently abolished, though a mortis causa deed disposing of heritage was read as speaking from the date of the death of the granter, and thus included property acquired down to that time, yet, if ‘dated’ upwards of sixty days before his death, it was free from the challenge of the heir.

On these grounds, while the Lord Ordinary regards the question as one of importance, and not free from difficulty, he has come to the conclusion that the petitioner holds his estate under a tailzie dated prior to 1st August 1848, and is therefore entitled to have the estate disentailed with the consents of the three next heirs as proposed… .”

At advising—