Scottish Court of Session Decisions

Sir Archibald Grant (I.), Baronet, of Monymusk, Aberdeenshire, entailed the estate of Monymusk in 1769 by a deed of entail, which contained the following provision with regard to the powers of heirs of entail to make provisions for their children—“And excepting also from the said restriction and limitation upon the heirs of entail, power to the said heirs of tailzie above specified to give suitable provisions to their children other than the heir of entail for the time being, to affect the rents of the lands and others contained in this deed of settlement, such provision to be given by each heir of tailzie to his or her children, other than the heir, not exceeding three years' rent of the estate, and which provisions shall only affect the persons of the succeeding heirs of tailzie possessing the estates and the rents thereof to the extent of one-half of whatever the heir does possess yearly, and any estate, real or personal, belonging to them, other than the said entailed estate or rents thereof, until the provisions given in manner foresaid to the children of the former heirs of entail shall be satisfied and paid, at least shall affect the same no further than to the extent of what shall have been paid or otherways extinguished of the provisions given to the children of the former heir, so that the whole provisions shall at no time exceed the sum of three years' rent.”

In 1818 Sir Archibald Grant (III.) bound and obliged himself, and the heir and heirs of entail succeeding to him in the said lands and estate of Monymusk, to satisfy and pay out thereof to his younger children after named the sum of £10,857, “which I compute to be within three years' rent of the said entailed estate, and … constitutes a capital of provision money payable from the said estate to the said children, … which sum I appoint the heir of entail succeeding to pay to them in the proportions following.” …

He died in 1820, and was succeeded by his son Sir James Grant, who made up titles in 1821 as heir to his father under the said entail, possessed the property from 1820 to 1859, and died unmarried, without paying off any part of said provision in favour of his brothers and sisters.

Sir Arthur Henry Grant made up titles under the entail by service in 1888, and in 1889 disentailed the estate of Monymusk.

In consequence of certain difficulties having been raised by the reporter (Mr H. B. Dewar, S.S.C.), to whom the Lord Ordinary had remitted the petition for disentail, a special case was presented by Sir Robert Jardine, Bart., of Castlemilk, and others, as in right of those in whose favour the said provision of £10,857 was made in 1818, and upon which the successive heirs of entail in possession paid interest regularly until 1889, of the first part, the said Sir Arthur H. Grant of the second part, and the representatives of the said Sir James Grant of the third part, to obtain the opinion and judgment of the Court upon the following question, viz.—“At the date of the disentail executed by the second party, did the said sum of £10,857 affect, or could it have been made to affect, the fee of the entailed lands of Monymusk, or the heirs of entail possessing the same?”

The first and third parties maintained that the sum in question was or could have been made a burden on the entailed estate.

The second party maintained that it was a debt which could not have been made to affect the estate, but which it fell to the representatives of Sir James Grant (i.e., the third parties) to pay.

The Entail Amendment Act 1848 (11 and 12 Vict. c. 36), by section 6, provides “That where any heir of entail in possession of an entailed estate in Scotland shall apply to the Court of Session … in order to disentail such estate … he shall make and produce in such application an affidavit setting forth that there are no entailer's debts or other debts, and no provisions to husbands, widows, or children affecting, or that may be made to affect, the fee of the said entailed estate or the heirs of entail, or if there are such debts or provisions, setting forth the particulars of the same, … and it shall be lawful for the Court to order such provision as may appear just to be made for such debts or provisions.” … And by section 21 it provides “That in all cases where an heir of entail in possession of an entailed estate in Scotland shall be liable to pay or to provide by assignation of the rents and proceeds of such estate for any sum or sums of money granted by any former heir of entail by way of provisions to younger children, … in virtue of the powers to that effect contained in any deed of entail under which the heir of entail in possession holds, … it shall be lawful for such heir of entail in possession to charge the fee and rents of such estate, … by granting bond and disposition in security over such estate, … for such amount, with the due and legal interest thereof from the date of such bond and disposition in security, or any subsequent date till repaid, and with corresponding penalties.” …

Argued for the second party—Each heir of entail was under the deed of entail entitled to burden the estate to the extent of three years' rent, and to enable him to

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do so he was necessarily under the corresponding obligation of paying off annually any provision made by the preceding heir of entail in possession to the extent of one half-year's rent. If he failed to do so, the obligation to pay that half-year's rent passed to his representatives, and ceased to affect any succeeding heir of entail in possession. Further, in the clause constituting the debt there was a direction to the heir of entail succeeding to pay. In the case of Hope Johnstone, November 27, 1880, 8 R. 160, relied on by the third parties, the burdening power was not limited as here to the amount of three years' rent in all. There there might be several such bonds. The only restriction was as to the amount the heir of entail in possession could be called upon to pay in one year. The Rutherfurd Act, here relied on, only applied where the charging was charging indefinitely, not where, as here, it was contemplated that the debt would be paid off within a certain limited period— Campbell, January 26, 1854, 16 D. 396, and Baillie, reported in Duncan on Entails, p. 339.

The other parties were not called upon.

At advising—