Scottish Court of Session Decisions

This was a petition by the Right Hon. George John Earl of Northesk for authority to uplift and apply consigned money in repayment of expenditure on permanent improvements on the entailed estates of Ethie and Lunan, both situated in the county of Forfar, of which estates he was heir in possession under two separate deeds of tailzie.

Prior to June 1879 the North British, Arbroath, and Montrose Railway Company, afterwards amalgamated with the North British Railway Company, acquired three separate portions of the entailed lands of Lunan, held under the Lunan entail, the compensation therefor being fixed under the Lands Clauses Consolidation (Scotland) Act 1845 at a sum amounting in all to £2475, 0s. 11d., which sum was consigned in bank on 14th June 1879.

The petitioner had expended upon permanent improvements on Ethie and Lunan a sum ascertained and reported by the reporter appointed by the Lord Ordinary to amount to £3121. This sum was expended on five farms, of which two were part of Lunan, and the remaining three were part of Ethie. The amount expended on the Lunan farms was £928, 6s., on the Ethie farms £2193, 4s. 6d.

The petitioner, on the ground that the destinations in the two entails were in effect precisely the same, asked leave to uplift in repayment of the sum of £3121,10s. 6d., being the total amount of these two sums, the sum of £2475, 0s. 11d. consigned in bank as above stated.

The 26th section of the Act 11 and 12 Vict. c. 36 (the Rutherfurd Act), enacts that “In all cases where money has been derived, or may hereafter be derived, from the sale or disposal of any portion of an entailed estate in Scotland, or of any right or interest in or concerning the same, or in respect of any permanent damage done to such estate under any private or other Act of Parliament … where the heir in possession of such entailed estate could by virtue of this Act acquire to himself such estate in fee-simple by executing and recording an instrument of disentail as aforesaid, it shall be lawful for such heir to make summary application to the Court in manner hereinafter provided for warrant and authority, and the Court upon such application shall have power to grant warrant and authority to and in favour of such heir of entail for payment to such heir of such sums of money as belonging to himself in fee-simple, but if such heir shall not be entitled to acquire such estate in fee-simple, then it shall be lawful for such heir with the approbation of the Court to lay out such money or any portion thereof in or towards payment of any money charged on the fee of such entailed estate under this or any other Act, or in redemption of the land-tax affecting such entailed estate, or in permanently improving the same, or in repayment of any money already expended in such improvements,” &c.

The petitioner was of full age, and not subject to any legal incapacity. The three next heirs were his three sons—Lord Rosehill, a minor, the Hon. Douglas Gordon Carnegie, and the Hon. Ian. L. A. Carnegie, pupils. Mr G. M. Paul, W.S., was, by interlocutor pronounced in the course of these proceedings, appointed by the Lord Ordinary to be curator ad litem to Lord Rosehill and tutor ad litem to his two brothers. No answers were lodged.

The Lord Ordinary remitted to Mr John Galletly, S.S.C., to examine and report upon the deeds produced, and upon the regularity of the proceedings. He reported that the application and whole procedure was regular and proper with the exception of a point of difficulty arising under the two destinations, that difficulty being whether they could for the purposes of the application be regarded as identical.

The Ethie entail and the Lunan entail were executed of the same date, 13th June 1815, by the grandfather of the petitioner. They were not recorded till 27th June 1832, after the entailer's death. In the Ethie entail the granter destined the lands of Ethie “to myself in liferent, and to the said William Hopetoun Carnegie, commonly called Lord Rosehill, my eldest son, and the heirs-male of his body in fee; whom failing to John Jarvis Carnegie, my second son, and the heirs-male of his body; whom failing to Swynfen Thomas Carnegie, my third son, and the heirs-male of his body; whom failing to any other son or sons to be procreated between me and the said Mary Countess of Northesk, successively in their order according to their seniority, and the heirs-male of their bodies successively; whom failing to any other son or sons to be procreated of my body in any subsequent marriage, successively in order according to their seniority, and the heirs-male respectively to be procreated of their bodies successively; whom failing to the heirs whatsoever of the body of the said William Hopetoun Lord Rosehill; whom failing to the heirs whatsoever of the said John Jarvis Carnegie; whom failing to the heirs whatsoever of the body of the said Swynfen Thomas Carnegie; whom failing to the heirs whatsoever of the bodies of any other son or sons to be procreated between me and the said Mary Countess of Northesk successively, in order according to the seniority of such sons; whom failing to the heirs whatsoever respectively of the bodies of any son or sons to be procreated by me in any subsequent marriage successively in order according to the seniority of such son or sons; whom failing to Lady Mary Carnegie alias Long, my eldest daughter, wife of Long, and the heirs whatsoever of her body; whom failing to Lady Anne Letitia Carnegie, my second daughter, and the heirs whatsoever of her body; whom failing to Lady Elizabeth Margaret Carnegie, my third daughter, and the heirs whatsoever of her body; whom failing to Lady Jane Christian Carnegie, my fourth daughter, and the heirs whatsoever of her body; whom failing to Lady Georgina Henrietta Carnegie, my fifth daughter, and the heirs whatsoever of her body; whom failing to the other heirs whatsoever to be procreated of my body; whom failing to the Honourable George Carnegie, my brother-german, and the heirs whatosever procreated or to be procreated of his body; whom failing to any person or persons to be named by

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me in any nomination or other writing to be executed by me at any time of my life; and failing of such nomination or other writing of the person or persons to be therein named and their heirs, then to the person having right for the time to the title or honour of Northesk or Rosehill, or any other title or honour enjoyed by me, and the persons succeeding thereto, in all time coming, in virtue of the destinations and rights of the said titles and honours: Declaring that in case my titles and honours shall happen to divide or separate or devolve to different persons, then the person succeeding to the highest title of dignity enjoyed by me, upon failure of all my heirs of tailzie before mentioned or to be named and appointed by me, shall have right and be entitled to succeed to my lands and estates before specified, my intention being that in that case my said lands and estates shall belong to the person succeeding to the highest title of dignity presently enjoyed by me; whom failing by the extinction of all my titles and honours, then to my heirs-male whatsoever; whom failing to my own nearest heirs whatsoever and their assignees, the eldest heir-female and the descendants of her body always excluding heirs-portioners and succeeding still without division throughout the whole course of succession of heirs whatsoever as well as of heirs of provision.”

The Lunan entail was in exactly similar terms but for two differences, which were—(1) The Hon. George Carnegie, instead of being called as in the Ethie entail after the heirs whatsoever to be procreated of the entailer's body, was called at a much earlier period of the destination, viz., immediately after the sons to be procreated of the body of the entailer in any subsequent marriage and the heirs-male of their bodies. He was there called in these terms—“whom failing to the Honourable George Carnegie, my brother-german, and the heirs-male of his body.” (2) The other difference occurred at the point in the destination almost immediately following that just mentioned. After the heirs whatsoever of the body of Lord Rosehill the Lunan entail ran, not as in the Ethic entail, “whom failing the heirs whatsoever of the said John Jarvis Carnegie, whom failing to the heirs whatsoever of the body of Swynfen Thomas Carnegie,” but “ whom failing to the heirs whatsoever of the body of the said John Jarvis Carnegie, whom failing to the heirs whatsoever of the said Swynfen Thomas Carnegie.”

At the date of this application the Hon. George Carnegie was dead without leaving heirs of his body; the Hon. John Jarvis Carnegie was still alive; Swynfen Thomas Carnegie was dead without leaving heirs-male.

Mr Galletly in his report called the attention of the Lord Ordinary to the difference between the destinations in order that his Lordship might determine whether the petitioner was entitled to uplift the whole sum consigned, or only the £928 which had been expended on permanent improvements upon the estate of Lunan.

The curator and tutor ad litem, without appearing by counsel before the Lord Ordinary, lodged a minute, in which he brought before the Lord Ordinary that “the consigned money is the price of ground taken from Lunan, whereas the permanent improvements were made mainly upon Ethic. Failing the petitioner and his issue, and the entailer's two younger sons and their issue male, the estate of Lunan is destined to the heirs whatsoever of the body of the entailer's second son, whereas Ethic is destined to the heirs whatsoever of such second son. There may thus in no long time be a split in the succession to these estates. They may, however, be held to be one entailed estate so far as the three minor heirs for whom I am tutor and curator are interested in them, as the divergence would arise upon a subsequent part of the destination. But it is for the interest of these minor heirs that the petition should be refused so far as concerns Ethic improvements, because if the heir in possession is entitled to repayment from the consigned fund he will get back from the estate the whole of his expenditure, whereas if his only remedy is to charge the fee by bond and disposition in security he will get back two-thirds of the amount and no more.”

The Lord Ordinary found that the petitioner had expended in permanent improvements on Lunan the sum of £928, 6s. mentioned above, and authorised him to uplift that sum with interest from bank, and to lodge in process the usual deed of acknowledgment and discharge bearing that he had received the said sum in repayment of the sum expended on Lunan, and discharging the estate and the succeeding heirs of entail. Quoad ultra his Lordship reported the petition and procedure to the First Division.

He added this note:—“The petitioner is heir of entail in possession of the estates of Ethic and Lunan, both situated within the county of Forfar.

“Part of the estate of Lunan was taken for the purposes of the North British, Arbroath, and Montrose Railway Company. The compensation payable for the land so acquired has been fixed at £2475, 0s. 11d., and that sum has been consigned in terms of the provisions of the Lands Clauses Consolidation (Scotland) Act.

The petitioner has expended the sum of £3121, 10s. 6d., in executing permanent improvements on both estates. In the present application he asks the Court to authorise the consigned sum to be applied towards payment of these improvements.

The estates of Ethic and Lunan are held under two separate deeds of entail, both dated 13th June 1815, and recorded in the Register of Tailzies 27th June 1832, and both executed by the same person, but with an apparent difference in the destinations.

The Lord Ordinary has given effect to the application in so far as the said improvements have been ascertained to have been made on the estate of Lunan. The competency of the application quoad ultra depends upon the construction and effect of the destination, and involves a question which the Lord Ordinary thinks it undesirable to decide in the Outer House in an unopposed application.

If the destinations in the two entails are really different, it is not maintained that the compensation payable for land taken from one can be applied in repayment to the proprietor of moneys expended in improving the other. But the petitioner contends that the destinations, although they differ in terms, are truly identical; and if so, that the two estates being entailed at the same time, by the same person, upon the same series of heirs, and under the same conditions, are, for

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the purposes of this application, to be treated as one, in accordance with the decision of the Court in the case of Maitland, 23d February 1854, 16 D. 651.

The destination in each entail is to the granter in liferent and his eldest son Lord Rosehill, and the heirs-male of his body in fee; whom failing to his second son John Jarvis, and the heirs-male of his body; whom failing to his third son Swynfen Thomas, and the heirs-male of his body; whom failing to any other sons to be procreated of his then existing marriage, in order of seniority, and the heirs-male respectively to be procreated of their bodies; whom failing to sons to be procreated of any subsequent marriage, in order, and the heirs-male of their bodies.

At this point in the destination the first variation occurs. In the Lunan entail the next heir called is the Honourable George Carnegie, the entailer's brother, and the heirs-male of his body. In the Ethie entail the next heirs are the heirs whatsoever of the body of Lord Rosehill, who in the Lunan entail are called immediately after the heirs-male of the body of George Carnegie. But in the event which has happened this variation is of no practical importance, since George Carnegie has died without the succession having opened to him, and without leaving heirs of his body.

At the next stage the variations occur which give rise to the present question.

In the Ethie entail the heirs called after the heirs whatsoever of the body of Lord Rosehill are the heirs whatsoever of the said John Jarvis Carnegie, whom failing the destination is to the heirs whatsoever of the body of Swynfen Thomas; whom failing to the heirs whatsoever of the bodies of other sons to be procreated in their order; whom failing to the entailer's eldest daughter Lady Mary Carnegie, and the heirs whatsoever of her body; whom failing to four other daughters named, in order, and the heirs whatsoever of their bodies respectively and successively; whom failing to the heirs whatsoever of the entailer's body; whom failing to the Honourable George Carnegie and the heirs whatsoever of his body; whom failing to persons to be named.

In the Lunan entail the destination is to the heirs whatsoever of the body of the said John Jarvis Carnegie, whom failing to the heirs whatsoever of the said Swynfen Thomas; and failing them the destination proceeds in the same terms to the same series of heirs as in the Ethic entail, except that the Hon. George Carnegie is not called after the heirs whatsoever of the entailer's body, but the heirs whatsoever of the body of the said George Carnegie are called in that place, and failing them persons to be named by the entailer, as in the Ethie entail.

The result is that in the Ethic entail the heirs whatsoever of John Jarvis Carnegie are called before the heirs of the body of Swynfen, while in the Lunan entail the heirs whatsoever of Swynfen are called before the heirs of the body of other sons to be procreated of the entailer's body, and before the entailer's daughters and the heirs of their bodies. If that part of the destination therefore should take effect according to its terms the estates may diverge and go to different heirs. But the petitioner contends that the words ‘heirs whatsoever’ are flexible, and that in this place they must be construed, according to the manifest intention of the entailer, to mean heirs whatsoever of the body, on the same principle on which ‘heirs-male’ has been construed to mean heirs-male of the body instead of heirs-male general.

The Lord Ordinary would have difficulty in giving effect to an argument founded upon the supposed flexibility of the term heirs whatsoever, if these words have been designedly used by the entailer. They have been the subject of much discussion in recent cases, and, so far as the Lord Ordinary is aware, there is no case in which they have received the interpretation for which the petitioner contends, or any similar interpretation. The result of the authorities is stated by Lord Cowan in the case of M'Gregor v. Gordon, 3 Macph. 168. ‘These words,’ says his Lordship, ‘have a fixed legal meaning attached to them. They are equally comprehensive with the word “heirs” generally, and in every case, with an exception to be immediately noticed, mean those heirs whom the law points out as entitled to succeed.’ The exception to which he refers is explained in a subsequent paragraph—‘There is but one state of circumstances connected with the succession which may affect the construction of a destination to heirs whatsoever. It is where titles to an estate, or to heritable rights relative thereto, have been taken in these terms by a party already vested with or having right and title to the property under prior investitures destining the estate to a particular class of heirs, as to heirs-male. Intention has in such cases been held to give a limited meaning to the destination in collateral or ancillary deeds to heirs whatsoever, and to carry the subjects to the heirs-male called to succeed by the primary or radical titles.’ But even if the words may be construed to mean heirs whatsoever of the body, there is difficulty in giving them that construction in the present destination; or where the maker of an entail has designedly used distinct technical terms having different meanings, applying one term to the heirs of a particular stirps, and the other to the heirs of another stirps occurring immediately afterwards in the destination, it is not to be presumed that he meant one and the same class of heirs in each of these two cases.

But, on the other hand, there is great force in the petitioner's argument that it would be inconsistent with the manifest intention of the entailer to call the heirs-general of John Jarvis Carnegie in the Ethic entail, or the heirs-general of Swynfen Carnegie in the Lunan entail, before the heirs of the bodies of younger sons, and before the entailer's daughters. It is said to be improbable that a series of heirs-substitute called as proper heirs of taillie should be postponed to the heirs whatsoever of a previous substitute who if the succession opened to them would take the estate in fee-simple. It is also material to observe that the effect of the destination in certain contingencies would be to carry the estate away from the immediate descendants of the testator, and even from his own daughters, to strangers in blood. Or if this did not happen, the nearest heirs-general of John Jarvis Carnegie in the one case, and the heirs-general of Swynfen Carnegie in the other, would be the same persons who are called to the succession next in order after these heirs are exhausted. It would be inconsistent,

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therefore, with the design and structure of the entail to call heirs whatsoever at this stage. The inference is that the words ‘of the body’ were omitted by a mere mistake, and if so, there seems sufficient ground for the petitioner's contention that the defect may be supplied by implication.

On the whole, therefore, the Lord Ordinary would have been disposed to grant the application. But an interlocutor to that effect would not have been taken to review; and since his decision, if erroneous, might infringe upon the rights of persons who are not parties to the process, and whose interests are not protected, he has thought it proper to report the petition.

The petitioner in support of his argument referred to Tinnoch v. M'Lennan, 26th November 1817, F.C.; Ker v. Innes, 5 Paton's App. 320; Halliday v. Maxwell, 4 Paton's App. 346; and Braid v. Waddell, 22 D. 433.”

In the Inner House the curator and tutor ad litem, was represented by counsel.

Argued for the petitioner—There was no real difference between the destinations in the Ethie and Lunan entails. The cases of Cochrane, Dec. 11, 1850, 13 D. 293, and Maitland, Feb. 23, 1854, 16 D. 657, were in point, while the case of Lockhart, June 26, 1852, 14 D. 150, which occurred under the Montgomery Act, was a decision on an analogous question, which was in the petitioner's favour. The term “heirs whatsoever” was to be interpreted in consonance with the context— M'Lachlan v. Campbell, 1757, M. 2312, and cases in the Lord Ordinary's note. In the Roxburgh case ( Ker v. Innes, cited supra), indeed, “heirs-male”—a term not less technical than “heirs whatsoever”—had been interpreted by the context in a manner similar to that contended for. These entails were of a testamentary character, and must be read in accordance with the granter's intention. It would be reading them against his intention to assume that he purposely placed at an early period of the destination words which, literally taken, would defeat the right of the substitutes for whom he anxiously provided in the succeeding branches. For the purposes of this application, at all events, the entails might be read as identical.

Argued for the tutor and curator ad litem—The term “heirs whatsoever” was not flexible, or at least had never been so read previously. In any event, it could not be subject to construction without such necessary implication as Lord Eldon explained to be necessary to give a technical word another than its proper meaning. The cases of Tennant v. Bailey, 1770, M. 14, 941, rev. 2 Pat. Ap. 243, and Stuart v. Stuart's Trustees, 2 Sh. Ap. 149 (Lord Gifford's opinion), were against the petitioner, and so also was the Dalswinton case ( Leny, June 28, 1860, 22 D. 1272), and the various cases relating to the Cluny entail— Gordon v. Gordon's Trustees, March 1, 1862, 24 D. 687; M'Gregor v. Gordon, March 7, 1863, 3 Macph. 148; Gordon v. Gordon's Trustees, March 2, 1866, 4 Macph. 101; Gordon v. Gordon's Trustees, October 28, 1881, aff. July 26, 1882, 19 Scot. Law. Rep. 33 and 899. The terms of the entails showed that they were not meant to be identical. The position of the Hon. George Carnegie in the one as compared with the other showed this clearly. Besides, the case of Farquhar, Nov. 29, 1839, 1 D. 120, shows that even if they were meant to be identical the Court will not be ready to correct an entailer's errors so as to keep up the fetters of an entail.