Scottish Court of Session Decisions

In 1799 Sir John Callander of Westertown executed a deed of entail of the lands of Crichton and Prestonhall and others. The deed of entail contained these provisions:—“As also reserving full power and liberty to the said heirs and substitutes of entail, being in the right and in the possession of the said lands, to provide their children and the children of their eldest sons or daughters, grandsons or grand-daughters, besides and other than the heir succeeding to the said estates, in portions and provisions to the following extent— videlicet, in case of one child who does not succeed as aforesaid, to the extent of two years' rent of the said estates at the time of granting the said bond; in case of two children not entitled to succeed to the said estates, to the extent of three years' free rent; and in case of three or more children, to the extent of four years' free rent of my said estates at the period aforesaid, after deduction of all legal and public burdens; and which provisions to the said children shall not bear interest until after the death of the granters, or the father of the child to whom they are granted: All which provisions to whole aforesaid children shall be divided as their respective fathers shall by any deed or writing under his hand nominate and appoint, and failing of any such nomination, equally between and among them, share and share alike: And which whole provisions to the children of the heir in possession, or to the children of his or her eldest son or daughter, grandson or granddaughter, shall he payable successively in the order in which they shall have been granted, and shall be provided and secured only by way of infeftment and locality, or by assignation to the rents, mails, and duties of such parts and portions of the lands and others hereby resigned, as to the granter of the said provisions shall seem meet, not exceeding a fourth part of the yearly rent of the whole lands above resigned, free of all public burdens and deductions whatsoever; and which localities or assignations, if in favour of the children of the heir in possession, shall commence from the term of Whitsunday or Martinmas immediately preceding the death of the granter, and if in favour of the children of the eldest son or grandson as aforesaid, shall commence from the term of Whitsunday or Martinmas next, and immediately preceding the death of their own father; and which localities or assignations respectively shall subsist until the rents so to be assigned and annually applied to the payment of the said provisions and growing interests thereof shall or may have extinguished the same, and no longer, after which the said localities or assignations shall cease and determine, even although, by indulgence or neglect, the said rents shall not have been regularly levied and applied as said is: And declaring that it shall not be lawful for any of the aforesaid heirs of taillie to grant any other kind of security over the said lands and estates for any of the said provisions to children, except in the way of locality or assignation in manner aforesaid; nor shall it be lawful to the said children to use any manner of diligence whatsoever against the said lands and others hereby disponed, or to affect the same in any way, except for levying the rents and duties to be assigned for the payment in manner aforesaid.”

In 1841 William Burn Callander, then heir of entail in possession of these lands, executed a bond of provision which ran thus:—“I, William Burn Callander, Esq. of Westertown, considering that I stand vested in the lands and estates of Crichton and Prestonhall, in the county of Edinburgh; Elphinstone, in the county of Haddington; and Westertown, in the county of Stirling; under and by virtue of a deed of entail, made and granted by the deceased Sir John Callander of Westertown, Baronet, my grand-uncle, dated the 29th day of May 1799, and of a deed of rectification thereof, dated the 7th day of March 1806, and both recorded in the Books of Session on the 1st day of May, and in the Register of Entails on the 28th day of November 1812; and that by the said deed of entail there is reserved ‘full power and liberty to the heirs and substitutes of entail, being in the right and in the possession of the said lands, to provide their children, and the children of their eldest sons or daughters, grandsons or granddaughters, besides and other than the heir succeeding to the said estates, in portions and provisions, to the following extent, viz.:—“In case of one child who does not succeed as aforesaid, to the extent of two years' rent of the said estates at the time of granting the said bond; in case of two children not entitled to succeed to the said estates, to the extent of three years' free rent; and in case of three or more children, to the extent of four years' free rent of the said estates, at the period aforesaid; after deduction of all legal and public burdens.’ That the net rental of the said entailed estates of Crichton, Prestonhall, Elphinstone, and Westertown, after deducting all legal and public burdens, amounted, for crop and year 1840, being the last rental at present made up, to £6703, 4s. 5¼d. sterling, conform to the rental thereof made up by my factor, an abstract of which is appended hereto, and to other vouchers referred to in said abstract. And now seeing that I am desirous to exercise the powers conferred on me by the above quoted clause of the said deed of entail: Therefore, in virtue of the said power, I hereby bind and oblige the heirs of entail, succeeding to me in the said entailed estates, on the day after my death, in the event of my leaving any child or children, either of my present or of any future marriage, and whether born before or after my death, who may not be entitled to succeed to me in the said entailed estates, to pay to the Right Honourable James Andrew Earl of Dalhousie,

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John Burn Murdoch, Esquire of Newck, advocate, my brother; Edward Burn, late of London, merchant, also my brother; and William Bruce, merchant in Leith; and to the survivors or survivor of them who shall accept, the majority accepting and surviving being always a quorum, and with power to assume others when they think right, as trustees for the purposes after mentioned, and to their or his assignees, the several sums of money in the several events after mentioned, viz.:—In the event of my leaving only one child who does not succeed to me in the said entailed estates, the sum of £13,000 sterling, being under two years' free rent of the said estates at this time; in case of two children not entitled to succeed to me in the said estates, the sum of £19,500 sterling, being under three years' free rent of the said estates; and in case of three or more children not entitled to succeed to me in the said estates, the sum of £26,000 sterling, being under four years' free rent of the said estates at this time, after deduction of all legal and public burdens, in terms of the before-quoted clause of the said deed of entail; with a fifth part more, &c. … and for the further security and more sure payment of the foresaid sums, I hereby bind and oblige myself, and the heirs of entail succeeding to me in the said lands and estates, duly and validly to infeft and seise the said Bight Honourable James Andrew Earl of Dalhousie, John Burn Murdoch, Edward Burn, and William Bruce, and the survivors or survivor of them who shall accept, or those who shall be assumed, as trustees foresaid, not only in all and whole an annualrent of £1300 sterling, or such other annualrent, less or more, as shall, by law for the time, correspond to the foresaid principal sum of £26,000 sterling, being the largest sum, in any event, provided by this deed, restrictable, as before and after mentioned, to be uplifted and taken, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first uplifting thereof at the first of these terms which shall happen after my death, and so on, to continue yearly and termly thereafter to be uplifted by them, during the not payment of the said principal sums, with a fifth part more of each term's annualrent of liquidate penalty, in case of failure, furth of all and whole (here follows the description of the lands), or furth of any part or portion thereof, readiest rents, profits, and duties of the same; declaring, however, that the said annualrent shall be restricted to £975 sterling in the event of my leaving only two children entitled to said provisions, and to £650 sterling, in the event of my leaving only one such child; and declaring also, that in case the provisions hereby granted shall be found to exceed the proportions mentioned in the said deed of entail, and before recited, of the rent or value of the said entailed estates, or to be granted in a form not allowed by the said deed of entail, the provisions hereby granted shall not be deemed to be void and null, but the same shall only be reducible to such extent as they shall be found to exceed the provisions authorised to be granted by the said deed of entail, but no farther, or the form shall be varied in compliance with what shall be held to be the meaning of the said deed of entail; but also in all and whole the said lands, teinds, and others foresaid with the pertinents themselves, and that in real security to the said trustees of the foresaid sum of £26,000 sterling, annualrents thereof, liquidate expenses, and termly failures, in so far as incurred, but restrictable, however, to the sum of £19,500 sterling in the event of my leaving only two children entitled to said provisions; and to the sum of £13,000 sterling in the event of my leaving only one such child.”

William Burn Callander died in 1854, leaving four children; the eldest of whom, John Alexander Burn Callander, succeeded to the entailed estates, and died in 1865, being succeeded in the estates by his eldest son, Henry Callander, a pupil. Two of the younger children of William Burn Callander now sued Henry Callander for payment of their provision under the bond of 1841, maintaining these pleas:—“(1) By the said deed of provision the heirs of entail were bound to pay, for behoof of the younger children, a sum amounting to four years' free rents of the entailed estates as at the death of the granter; and the pursuers, as assignees of two-thirds thereof, are entitled to enforce the same against the defender. (2) Or otherwise, the pursuers are, in virtue of the said bond of provision, and disposition and assignation thereof, assigned into two-thirds of one-fourth part of the rents of the entailed estates, until the amount due to them under the said bond is paid; and the pursuers are entitled to decree against the defender in conformity therewith. (3) Or otherwise, the heirs of entail were and are bound to pay to the pursuers an annual sum amounting to two-thirds of £1300, and the pursuers are entitled to recover from the defender the amount of such annual payment for the time for which he has possessed the estates, with interest, and to obtain decree for the future annual payment aye and until the amount due to them under the said bond is paid. (4) Or otherwise, under the said bond and disposition, and assignation thereto, and under and in virtue of the Aberdeen Act, the pursuers are entitled to recover from the defenders two-thirds of three years' free rents, as at the date of the death of the granter of the said bond.”

The defender pleaded, inter alia—“(2) The alleged bond of provision is invalid and ineffectual in so far as regards the said defender and the entailed estates, in respect that it is ultra vires of the granter thereof as heir of entail in possession of said estates under the deed of entail in virtue of which the alleged bond bears to be granted, and the defender should be assoilzied accordingly. (3) The said alleged bond cannot be sustained as a bond granted under and in virtue of the Act 5 George IV., cap. 87, in respect that it was not granted under and in virtue of the powers of that statute, and is so expressed as to exclude the view that it was granted under and in virtue of these powers, and the defenders should therefore be assoilzied from the last alternative conclusion of the action.”

The Lord Ordinary ( Ormidale) pronounced this interlocutor:—“Finds that, under the deed of entail in question, power is reserved to the heirs and substitutes of entail, being in the right and possession of the entailed lands or estates, to provide their children, other than the heir succeeding to said estates, in portions or provisions, to the extent, in case of one such child, of two years' free rent; in case of two such children, of three years' free rent; and in case of three or more such children, of four years' free rent; and that by said deed of entail it is declared that said provisions should be provided and secured only by way of infeftment and locality, or by assignation to the rents, maills, and duties of such parts and portions

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of the entailed lands as to the granter of said provision should seem meet, not exceeding a fourth part of the yearly rent of the whole entailed lands, free of all public burdens and deductions whatsoever, said provisions to be made payable and to subsist as mentioned in the deed of entail: Finds that, by the bond of provision libelled on, the deceased William Burn Callander, as heir of entail in possession for the time of the entailed estates in question, on the narrative, and in virtue of the powers conferred on him by the said deed of entail, made provisions in favour of his three younger children, not succeeding to the entailed estates, to the effect of entitling the pursuers, as two of said three younger children, to two third parts of four years' free rents of the entailed estates, payment thereof to be secured by way of infeftment for an annualrent as therein mentioned, and subject to the declaration, that in case the provisions thereby granted should be found to exceed the proportions mentioned in the deed of entail, they should not be deemed to be void and null, but that the same should only be reducible to such extent as they should be found to exceed the provisions authorised to be granted by the said deed of entail, but no farther, or that the same should be varied in compliance with what should be held to be the meaning of the deed of entail: Finds also, that by said bond of provision the said deceased William Burn Callander assigned to his trustees therein named not only the rights, titles, and securities of the entailed estates, but also as much of the rents thereof as would pay the provisions thereby constituted in favour of his younger children: Finds that, by the disposition and assignation libelled on, executed in favour of the pursuers by Mr Hugh Bruce, as the surviving trustee acting under said bond of provision, they are now directly in right of the provisions constituted in their favour as aforesaid: Finds that, by judgment of this Court, dated in December 1863, pronounced in an action of reduction of said bond of provision, at the instance of the eldest son and heir (succeeding to the entailed estates in question) of the said deceased William Burn Callander, against his trustees, appointed by and acting under said bond, it was held that the bond was a valid and operative instrument, notwithstanding an alleged defect in its testing clause: Therefore, in these circumstances, repels the defenders' first two pleas in law, and appoints the case to be enrolled, in order to be farther proceeded with.

“ Note.—It was explained, on the part of the defenders, that their first plea in law was stated, not in the expectation that the Lord Ordinary could sustain it in the face of the judgment of the Court referred to in the above interlocutor, and reported in 2 Macph., p. 291, but merely to keep the question open, in the event of their appealing that judgment to the House of Lords. In regard to the defenders' second plea, which has now also been repelled, it has to be observed that the summons in this case contains four alternative conclusions, the three first being founded on the powers of the deed of entail, and the last on the Aberdeen Act. But the argument hitherto addressed to the Lord Ordinary had reference not so much to the particular conclusion of the action under which the pursuers are ultimately to ask decree, as to the question whether they are entitled to any decree at all; it being contended, on the part of the defenders, that the pursuers were not entitled to decree to any extent or effect, for the reason (as stated in the defenders' second plea in law), that the bond of provision on which they have libelled is invalid and ineffectual, in respect that it is ultra vires of the granter thereof, as heir of entail in possession of the estate in question, under the deed of entail in virtue of which the bond bears to be executed, and consequently that the pursuers are not entitled to have any decree pronounced in their favour in the present action, laid as it is on the said bond of provision. It was urged by the defenders, in support of this contention, that the bond of provision could not be sustained as being granted in virtue of the Aberdeen Act, as it expressly bore to be granted in virtue of the powers of the deed of entail alone. In answer to this, the pursuers cited and relied on the case of Macdonald Lockhart, as decided in this Court (15th July 1853, 15 D. 914); but the authority of that case, so far as it can be held to bear on the present point, appears to the Lord Ordinary to be very much shaken by the remarks of the Lord Chancellor (Cranworth) and Lord Brougham in the subsequent case of Dickson v. Dickson, in June 1854, 1 Macq. p. 729. The Lord Ordinary, therefore, would not, as now advised, be disposed to pronounce decree in terms of the fourth or lost conclusion of the summons, founded as it is on the Aberdeen Act. Neither would the Lord Ordinary be disposed at present to give decree in terms of the first conclusion of the summons, as it does not appear to him that the deed of entail imposes an obligation and liability for the provisions in question on the heirs of entail. It does, however, appear to the Lord Ordinary that the deed of entail affords sufficient warrant for decree being pronounced under one or other of the second and third conclusions of the summons, and therefore he has repelled the defenders' second as well as their first plea in law. The only objection suggested to this view on the part of the defenders, as the Lord Ordinary understood their argument, was, that while the deed of entail only authorised an infeftment and locality, or an assignation to rents, to the extent of a certain specific portion of the entailed estates, sufficient to satisfy the provisions in favour of younger children, the bond libelled on is not so limited, but embraces the whole of the entailed estates. The Lord Ordinary cannot think that this is a good objection, as, in his opinion, it is quite competent to have the provisions restricted, if necessary, in the range of their operation as well as their amount, so as to obviate any such objection as that referred to. Whether any restriction is necessary, either as regards the operation of the pursuer's provisions or as to their amount, is a matter on which parties are still to be heard. The Lord Ordinary, however, was led to understand that if it were once definitely settled that the defenders' second plea in law is untenable, and that the bond of provision founded on by the pursuers is valid under the entail, all other subordinate questions would probably be adjusted without farther litigation.”

The pursuers reclaimed.

Gordon, Q.C., Millar, Q.C., and J. Marshall, for reclaimer.

Clark and H. Smith for respondent.

At advising—