Scottish Court of Session Decisions

The family of Hunter of Hunterston or Hunterstoun was a family of great antiquity in the county of Ayr, and had been in possession of their estate and had borne the name and designation of Hunter of Hunterston at all events since 1374, when William Hunter obtained a charter from King Robert II. In 1796 the estate of Hunterstoun was in possession of the then heiress and representative of the family Miss Eleonora Hunter, the male line having previously failed. She married her cousin Robert

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Caldwell, and by their contract of marriage, which was dated the 28th day of May 1796, she conveyed the Hunterston estate to Robert Caldwell and herself in conjunct fee and liferent for her own liferent use allenarly, and to the heirs of their marriage, whom failing to the other heirs therein called to the succession (with this provision, that Robert Caldwell and all the heirs therein substituted, when the succession devolved on them, should bear and constantly use the name of Hunter and arms of Hunter of Hunterston, and in case of failure to comply with that condition the contraveners should forfeit their right to the estate, and be bound to denude of the same in manner therein mentioned); and further, by the contract of marriage Robert Caldwell bound and obliged himself and his heirs and successors to make, execute, and record a strict entail of the estate, calling to the succession the same series of heirs to whom the lands stood thereby destined.

On 31st March 1810 Robert Caldwell, then known and designed as Robert Caldwell Hunter of Hunterston, matriculated in the Lyon Office in Scotland, and obtained a patent in his favour of the arms of Hunter of Hunterston, the exemplification thereof being as follows:—“Hunter, Robert Caldwell, of Hunterstown, in the shire of Ayr, Esquire—Bears, vert; three dogs of chase, courant argent, collared or, on a chief of the second three hunting horns of the first stringed, gules: Above the shield an helmet befitting his degree with a mantling gules, the doubling argent; and on a wreath of his liveries is set for crest a greyhound sejant, argent, collared or; motto ‘ Cursum Perficio.”

By disposition and deed of entail, dated 2d April 1810, subsequently recorded in the Register of Tailzies 22d February 1838, Robert Caldwell Hunter and his wife, on the narrative of the above contract of marriage and the provisions and obligations therein contained, disponed the estate of Hunterston to Robert Hunter, their eldest son, and the heirs whatsoever of his body, whom failing to their other children in their order, whom failing to certain other heirs, but always with and under the conditions, provisions, restrictions, limitations, exceptions, clauses irritant and resolutive, burdens, declarations, and reservations therein written; and in particular, with and under the condition that the said Robert Hunter, our eldest son, and the whole heirs aforesaid succeeding to the lands and others above specified, shall be obliged to use, bear, and constantly retain in all time coming after their succession the surname of Hunter and coat-armorial of the family of Hunterston, and the husbands of all the female heirs succeeding to the said estate shall also be obliged to assume, use, bear, and constantly retain the same surname and arms.”

Seven children were born of the marriage of Robert Caldwell Hunter and Mrs Eleonora Hunter, of whom the pursuer Margaret Hunter alone survived at the date of the present action. All the pursuer's brothers and sisters died without leaving issue except her eldest brother Robert, who succeeded to the estate of Hunterston on his father's death on 22d August 1826. Robert Hunter on 23d November 1836 married Miss Christian Macknight Crawford, eldest daughter of William Macknight Crawford of Cartsburn, of which marriage there was issue two daughters, viz., Jane Hunter, one of the present defenders, and Eleonora Hunter. Jane Hunter on the 8th July 1863 was married to the other defender Gould Read Weston, who thereafter designed himself as Gould Read Hunter-Weston of Hunterston, a Lieutenant-Colonel on the retired list of Her Majesty's Indian Army. Eleonora Hunter became the wife of R. W. Cochran Patrick, Esq. of Woodside, M.P., and had issue one son and one daughter, after whom the pursuer was the next substitute heir of entail.

Robert Hunter died on 14th March 1880, when the succession to the entailed estate of Hunterston opened to the defender Mrs Hunter-Weston, and she completed a title to and entered into possession of the estate.

From 1810 to 1865 Robert Caldwell Hunter, and after him Robert Hunter, used the arms of the Hunterston family as matriculated in 1810, but on 5th June 1865, on the petition of Robert Hunter, a patent was issued and granted by the Lyon-King-at-Arms, which set forth that by his petition Robert Hunter had represented that the armorial bearings of his family appeared to have varied considerably at different periods (as fully set forth in the petition), and that in 1810 the father of the petitioner placed on record in the Lyon Register the coat which was borne at and some time prior to the commencement of the 17th century, but that the petitioner was desirous to revert to the original arms of the family, which were or, three hunting horns vert, stringed gules, and prayed that the Lyon-King would ratify, maintain, and confirm to him and his descendants the aforesaid ancient arms, with the further distinction of supporters. The patent proceeded to set forth that the Lord Lyon-King-of-Arms having by his depute considered the petition, did, by the said patent, ratify, maintain, and confirm to the said Robert Hunter of Hunterston, and to his descendants, with such congruent differences as might thereafter be matriculated for them, the following ensigns armorial, as depicted on the margin of the said patent, and matriculated of even date in the register, viz.:— Or, three hunting horns vert, garnished and stringed gules; above the shield is placed a helmet befitting his degree, with a mantling gules, doubled argent, and on a wreath of his liveries is set for crest a greyhound sejant proper, gorged with an antique crown or; on a compartment below the shield are placed for supporters two greyhounds proper, gorged with antique crowns or; and in an escrol entwined with the compartment this motto, Cursum Perficio,—the destination of the supporters being limited to the patentee and the heirs-male of his body.” These arms were recorded in the register.

This was a declarator of irritancy of the entail of the estate of Hunterston, in which the pursuer averred—Since the date of the succession to the entailed estate opening to the said Jane Hunter she has not used and borne the surname of Hunter, nor has her said husband assumed the same surname, in terms of the said deed of entail Further, neither she nor her said husband bears the arms of Hunter of Hunterston in terms of the said entail. They bear a coat-armorial which is not, nor does it quarter, the arms of the family of Hunter of Hunterston as existing at and prior to the said contract of marriage, and particularly matriculated as above mentioned in 1810 as those of the family of Hunter of Hunterston. The pursuer believes and avers that the defender by unwarrantably representing the alleged arms obtained in 1865 to be the arms of the family, and by the exhibition of an isolated clause of the deed of entail of 1810, obtained an order or deliverance of the College of Arms in England as to his assuming

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a particular surname and arms, which, however, is not effectual in Scotland, and does not affect the construction of the deed of entail. In terms of the provisions of the said disposition and deed of entail, it is incumbent on the defenders to assume, use, bear, and constantly retain the surname of the family of Hunter of Hunters-ton, and also the arms of Hunterston as under the patent of 1810, and referred to in the deed of entail. By their failure to do so they have contravened the entail, and have incurred the forfeiture thereby imposed in that event, and the pursuer has raised the present action for the purpose of vindicating the name and position of the family.

The defenders averred that “the said arms thus duly recorded ( i.e., in 1865) are the coat armorial of the family of Hunterston, and in accordance with the laws of Scotland none other can lawfully be borne as the arms of that family than those recorded in the Lyon Office. The said arms were borne by Robert Hunter of Hunterston down to his death, and they and none other have been known and used by him and his family since the date of the said patent. On the defender Mrs Hunter-Weston succeeding (at the death of the said Robert Hunter) to the estate of Hunterston, her husband, Lieutenant-Colonel Gould Weston, bearing her Majesty's commission, and desiring to fulfil in the most full and formal manner the conditions of the entail, obtained, as an Englishman, through the College of Arms in England, the royal license to assume and use the surname of Hunter and the coat armorial of the family of Hunterston in addition to his own, the surname being prefixed and the arms quartered in the second quarter. In obedience to the royal commands, the Garter-King-of-Arms forwarded to the Lyon-King-of-Arms a certificate that the right of Lieutenant-Colonel Weston to bear arms was recognised in the College-of-Arms in England, and the Lyon-King-of-Arms transmitted to the Garter-King-of-Arms an exemplification of the coat armorial of the family of Hunterston. Due record of the quartered arms was made in the College-of-Arms and in the Lyon Office, and patents were issued therefrom in favour of Lieutenant-Colonel Hunter-Weston, and of his wife Jane Hunter-Weston, the Hunter coat being the ancient and true coat restored to the late Robert Hunter and his descendants in 1865 as aforesaid. The defenders thus took the due and appropriate steps incumbent upon them, and they could not lawfully have borne any other arms as the coat armorial of the family of Hunterston.”

The pursuer pleaded—(1) The pursuer as a substitute heir of entail, and only surviving daughter of the entailer, is entitled to have decree in terms of the conclusions, in respect that (1st) the surname of Hunter, and (2d) the arms and coat armorial of the family of Hunterston, have not been assumed, used, borne, and constantly retained, and are not now used, borne, and retained by the defenders. (3) The defenders are not entitled to found upon the proceedings in 1865 as regulating the matter, in respect that those proceedings did not revoke, and could not lawfully revoke, the proceedings of 1810 or affect the judgment obtained thereon. (4) The defenders are bound to use and bear the arms contained in the patent of 1810, in respect (1st) that they are and have been from time immemorial the true and ancient arms of the family of Hunter of Hunterston; (2d) that they are the arms exemplified and registered by the entailer immediately prior to the execution of the entail, and to which the entail bears reference; and (3d) that they are the arms used, borne, and constantly retained by the entailer and his successors in the entailed estates for upwards of forty years, following upon a judgment of the Lord Lyon.

The defender pleaded—“(2) The defender Lieutenant-Colonel Hunter-Weston having assumed, and both of the defenders using and bearing, the surname of Hunter and coat armorial of the family of Hunterston, decree of absolvitor should be pronounced. (3) Separatim, The Lord Lyon-King-at-Arms has sole and exclusive right to determine what is the coat armorial of the family of Hunterston, and the defenders bearing the arms recorded as such in the Lyon Office, they are therefore entitled to absolvitor de piano from the action so far as founded on the arms borne by them.”

The Lord Ordinary (Adam) assoilzied the defenders, and added the following note:—The question in this case is whether the defenders Colonel and Mrs Hunter-Weston of Hunterston now use, bear, and retain the surname of Hunter and coat armorial of the family of Hunterston. If they do not, then it is alleged by the pursuer that Mrs Hunter-Weston has contravened the entail under which she holds the lands and estate of Hunterston, and has forfeited her right to the estate.

It appears to the Lord Ordinary that the facts are sufficiently admitted or proved to enable him to dispose of the case without further inquiry.

By the deed of entail dated 2d April 1810, and recorded in the Register of Tailzies 22d February 1838, under which Mrs Hunter-Weston holds the estate of Hunterston, Robert Caldwell Hunter and Mrs Eleonora Hunter of Hunterston, his spouse, dispone the said estate to Robert Hunter, their eldest son, and the heirs whatsoever of his body, whom failing to the other heirs therein mentioned, of whom the pursuer (who is a daughter of the entailers) is one. The estate is disponed, inter alia, under the condition that ‘the said Robert Hunter, our eldest son, and the whole heirs aforesaid succeeding to the lands and others before specified, shall be obliged to use, bear, and constantly retain, in all time coming after their succession, the surname of Hunter and coat armorial of the family of Hunterston; and the husbands of all the female heirs succeeding to the estate shall also be obliged to assume, use, bear, and constantly retain the same surname and arms. This condition is fenced by irritant and resolutive clauses.

The entailer Robert Caldwell Hunter died in August 1826, when he was succeeded by his eldest son, the said Robert Hunter.

Robert Hunter died in March 1880, and was succeeded in the said estate by his elder daughter Mrs Hunter-Weston.

The first question is, whether the defenders, by using the name or names of Hunter-Weston, have contravened the before-recited condition of the entail. It will be observed that it is not thereby provided that the heirs succeeding shall use the surname of Hunter only, nor are there any equivalent expressions. It appears to the Lord Ordinary that the defenders do in point of

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fact use the surname of Hunter. They do not the less use that surname because they use along with it another surname—that of Weston—which they are not in any way prohibited from using. The Lord Ordinary is of opinion that as there are no words in the entail restricting the defenders to the use of the surname of Hunter only, they are entitled to use in conjunction with it the surname of Weston, and have not therefore in this respect contravened the entail. (Bell's Lectures on Conveyancing, 1017.)

As regards the use of the ‘coat armorial’ of the family, the facts would appear to be that in May 1796 the said Robert Caldwell Hunter, then Robert Caldwell, married Eleonora Hunter, the heiress of the estate. By antenuptial contract of marriage she disponed the estate to him and herself in conjunct fee and liferent for her own life-rent use allenarly, and to the heirs of their marriage, under the provision that the said Robert Caldwell and the heirs therein substituted should, when the succession devolved upon them, bear and constantly use the name of Hunter and the arms of Hunter of Hunterston.

Robert Caldwell thereupon assumed the name of Robert Caldwell Hunter, but it does not appear what coat armorial he used prior to 1810. On the 31st March 1810, a few days before the execution of the entail, he matriculated in the Lyon Office, and obtained a patent in his favour of the arms of Hunter of Hunterston, blazoned (as it is called) as set forth in the fourth article of the condescendence.

These arms were duly registered in conformity with the Act 1672, and are maintained by the pursuer to be the true and ancient arms of the family which the defenders are bound to use.

These arms were used by Robert Caldwell Hunter till his death in 1826, and by his son Robert Hunter, who then succeeded him till 1865. It appears, however, to have then occurred to Robert Hunter that a mistake had been made in 1810—that the arms granted at that time were not the true and ancient arms of the family, and that he was entitled to different and, as it would appear, more honourable arms; and he presented a petition to the Lord Lyon praying that the ancient and veritable arms of Hunter of Hunterston might be ratified, maintained, and confirmed to him and his heirs after him. The result was that a new patent of arms was issued and granted to him, which are described in the defenders' statement as being the original arms of the family. Even to an uninstructed eye this ‘coat armorial’ is quite different from the coat armorial granted in 1810, and it has, in addition, the distinction of supporters.

These arms were borne by Robert Hunter till his death in 1880. Mrs Hunter-Weston then succeeded, and came under the obligation of using the coat armorial of Hunter of Hunterston.

Colonel Weston being an Englishman, thereupon applied for and obtained, through the College of Arms in England, the royal licence to assume and use the surname of Hunter and the coat armorial of the family of Hunter of Hunterston in addition to his own, the surname being prefixed and the arms quartered in the second quarter. The Garter-King-of-Arms was then put in motion, and he applied to the Lyon King-at-Arms for an exemplification of the coat armorial of the family of Hunter of Hunterston, that it might be duly quartered on the new arms. The Lyon King transmitted to the Garter King an exemplification of the coat according to the patent of 1865. The quartered arms with these arms duly quartered were recorded both in the College of Arms and in the Lyon Office, and patents thereof were issued to the defenders. These are the arms which they now use, and to which the pursuer objects.

The Lord Ordinary is of opinion that the defenders took the proper and appropriate course in order to have it ascertained and determined what arms they ought to use in compliance with the deed of entail. They applied to the authorities duly constituted and empowered to regulate such matters, and it is under the authority of the Lord Lyon that they use the arms which they now use as being the coat armorial of the Hunters of Hunterston. These arms were used by Mrs Hunter-Weston's immediate predecessor for fifteen years before she succeeded to the estate. They had been duly recorded in the Lyon Office, and issued to him as the ancient and veritable arms of the family, and the Lord Ordinary cannot see that Mrs Hunter-Weston is contravening the entail in continuing to use them. The Lord Lyon may have been in error in issuing the patent of 1865.

The Lord Ordinary asked the counsel for the pursuer whether she proposed to take any steps to have that patent set aside, either by reduction or by proceedings before the court of the Lord Lyon or otherwise, but it was stated that she did not propose to take any such steps. But the patent was issued as the result of proceedings ex facie competent before a competent court, and cannot be questioned in this action.

It was further maintained that the deed of entail had reference to the grant of arms of 1810, which was registered a few days before the entail was executed. The entail, however, bears no reference to this particular grant, but merely ordains the use of the coat armorial of Hunter of Hunterston, whatever that may be.

“On the whole matter, therefore, the Lord Ordinary is of opinion that the defenders are entitled to be assoilzied. The Lord Ordinary was referred to the cases of M'Donell v. Macdonald, Jan. 20, 1826, 4 S. 371; and Cuninghame v. Cunyngham, June 13, 1849, 11 D. 1139.”

The pursuers reclaimed, and argued—The principles of malignant construction usually urged against pursuers of a declarator of irritancy of an entail did not apply here. The fair intention of the entailer was what ought to rule, and according to his intention the defenders were bound to use the name of Hunter alone, and also the Hunter arms as the entailer himself used them from 1810 onwards. These were the true Hunter arms, these in the patent of 1865 being erroneous—Nisbet's Heraldry, vol. i., p. 325. Further, to quarter the Hunter arms with the Weston arms was a contravention of the entail. At all events, the Hunter name and coat ought to have the place of honour, which had not been given here. A husband and wife ought to impale not quarter.

Replied for the defender—The ordinary principles of construction applied here, and the meaning of the deed was clear. There were no restrictive words. If it was intended to impugn the patent of 1865, that, if competent at all,

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could not be done by way of exception. There must be a reduction or an advocation. To adopt any other arms than those authorised by the Lyon King would subject the party to the penalties of the Act 1672, cap. 21.

Authorities— M'Donell v. Macdonad, Jan. 20, 1826, 4 S. 371; Cuninghame v. Cunyngham, June 13, 1849, 11 D. 1139; Sir George Mackenzie's Science of Heraldry, p. 80; Bell's Conveyancing (2d ed.), p. 1017.

The Lords made avizandum.

At advising—