Scottish Court of Session Decisions

The Entail Amendment Act 1848 (11 and 12 Vict. cap. 36) enacts—Section 48—“And be it enacted that from and after the passing of this Act it shall be competent to grant an estate in Scotland limited to a liferent interest in favour only of a party in life at the date of such grant; and where any land or estate in Scotland hall, by virtue of any deed dated on or after the said first day of August One thousand eight hundred and forty-eight, be held in liferent by a party of full age, born after the date of such deed, such party shall not be in any way affected by any prohibitions, conditions, restrictions, or limitations which may be contained in such deed or by which the same or the interest of such party therein may bear to be qualified, and such party shall be deemed and taken to be the fee-simple proprietor of such estate, and it shall be lawful to such party to obtain and record an act and decree of the Court of Session in the like form and manner, and in the like terms, and with the like operation and effect as is hereinbefore provided with reference to an

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act and decree of the said Court in the case of deeds of trust.”

The Honourable Mrs Ismay Lucretia Mary Maule Ramsay, formerly Crichton-Stuart, tutrix to her pupil son Michael Duncan David Crichton-Stuart of Falkland in the county of Fife, presented a petition in which she craved the Court to declare that in virtue of the provisions of section 48 of the Entail Amendment Act 1848 he was fee-simple proprietor of the estate of Falkland and others therein mentioned.

The petition, after referring to sections 47 and 48 of the said statute, and to the application presented by the petitioner under the Trusts Act for authority to sell, then pending before Lord Blackburn, proceeded as follows:—“The provisions of the statute before referred to providing that a party holding in liferent may make application to the Court of Session for declarator that he or she is a fee-simple proprietor only apply to parties of full age, but no provision seems to have been made for cases like the present where the party in possession is in pupilarity, and where it is advisable in the event of the party in possession being a pupil or minor that declarator be obtained from your Lordships that the said party is a fee-simple proprietor. The petitioner is accordingly under the necessity of applying to your Lordships in exercise of the nobile officium of the Court to pronounce an act and decree declaring the said Michael Duncan David Crichton-Stuart to be fee-simple proprietor of said estate of Falkland and said subjects called The Priory, St Andrews, and that all prior to the prosecution of any further procedure under the said petition for power to sell now pending before the Honourable Lord Blackburn.”

No answers were lodged.

The circumstances in which the petition was presented sufficiently appear from the report ( infra) by Mr J. H. Guild, W.S., to whom on 7th June 1921 the Court remitted the application.

In his report Mr Guild, inter alia, stated—“The petition is presented by the Honourable Mrs Ismay Lucretia Mary Maule Ramsay, formerly Crichton-Stuart, mother and tutrix of Michael Duncan David Crichton-Stuart, only surviving son of the late Lord Ninian Edward Crichton-Stuart, who was the second son of the late Most Honourable John Patrick Crichton-Stuart, Marquess of Bute, K.T.

The late Marquess of Bute died on 9th October 1900.

At the date of the death of the Marquess Lord Ninian Edward Crichton-Stuart was a minor. On 15th May 1904 he attained majority. In 1906 he married the petitioner, and on 2nd October 1915 he was killed in action. Two sons and two daughters were born of the marriage, viz.—1. The eldest son, Ninian Patrick Crichton-Stuart, who predeceased his father on 4th February 1910 in infancy; 2. the pupil the said Michael Duncan David Crichton-Stuart, who was born on 14th March 1915; 3. Ismay Catherine Crichton-Stuart; and 4. Claudia Miriam Crichton-Stuart.

By his trust-disposition and settlement dated the 13th day of July 1894, and with various codicils thereto registered in the Books of Council and Session on the 17th day of October 1900, the late Marquess of Bute conveyed his whole heritable and moveable estate to certain trustees therein named, and directed them, inter alia, to free and disencumber his estate of Falkland and any subjects adjacent thereto, situated in the parishes of Falkland, Auchtermuchty, and Strathmiglo in the county of Fife, and also the subjects in St Andrews in the said county called ‘The Priory,’ of all debts which might at the time of his death affect them, and to hold the same for the liferent use allenarly of the said Lord Ninian Edward Crichton-Stuart, his second son, whom failing the heirs-male of his body according to the rules of heritable succession in Scotland, whom failing the heirs-female of his body according to seniority.… He further directed his trustees on his said son or other beneficiary attaining majority … to settle the said whole lands and estate of Falkland and others, and the said subjects called ‘The Priory’ and pertinents thereof, on his said second son or other beneficiary as aforesaid in liferent, subject to the provision therein and hereinafter mentioned, whom failing on the heirs-male of his body according to the rules of heritable succession in Scotland … in fee; and he provided that his trustees should in settling the said estate and others under the said direction confer on his said second son or other beneficiary who should take the liferent—( Primo) the entire beneficial enjoyment of the said estate of Falkland and others and whole rents, &c., thereof, and full and exclusive powers of administration and management, and not only all the powers of a liferenter but all the powers of an absolute fee-simple proprietor, excepting always the power to burden or sell, and ( secundo) power to settle the said estate and others by mortis causa deed on any one of the heirs of his body, and that on such conditions and under such limitations as regards the liferent and succession as to him should seem fit, and failing such settlement the said Marquess directed that the Falkland estate should descend in fee to the heir next substituted to his said second son or other beneficiary in liferent.

In implement of the above directions the trustees of the said Marquess, by disposition dated 6th and 7th March 1914, and duly registered in the appropriate Registers of Sasines, disponed and conveyed the above-mentioned estate and others to the said Lord Ninian Edward Crichton-Stuart in liferent, with power to him to settle the same by mortis causa deed, all as provided in the said trust-disposition and settlement of the said Marquess.

By deed of settlement and trust-disposition and settlement dated 12th July 1907, and together with relative codicils registered in the Books of Council and Session 1st November 1915, the said Lord Ninian Edward Crichton-Stuart, on the narrative that he was desirous of exercising the power to settle the said estate and others by mortis causa deed as provided by the said trust-disposition and settlement of the said Marquess,

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disponed the said estate and others to his eldest son Ninian Patrick Crichton-Stuart in liferent and the heirs-male of his body in fee, whom failing to any other sons who might be borne to him, the said Lord Ninian Edward Crichton-Stuart, in their order of seniority in liferent and the heirs-male of their bodies respectively in fee, subject to the conditions contained in said deed of settlement and trust-disposition and settlement.

It will be observed that the interest conferred by the said Marquess upon the late Lord Ninian Edward Crichton-Stuart was restricted to a liferent, together with a power to settle the estate upon one member of a limited class, and that the liferenter Lord Ninian Edward Crichton-Stuart in making the settlement upon his eldest son in liferent (whom failing, then as above mentioned) exercised a power conferred upon him by the trust-disposition and settlement of his father, but subject to the restrictions of that deed.

In these circumstances the question has arisen whether the restriction of the interest of the said Michael Duncan David Crichton-Stuart to a liferent, which was so made in virtue of the power above referred to, was effective in view of the fact that he was not in life at the date of the death of the Marquess of Bute, and also in view of the fact that the original destination contained in Lord Bute's settlement in favour of Lord Ninian Edward Crichton-Stuart was ‘whom failing on the heirs-male of his body, according to the rules of heritable succession in Scotland, in fee.”

The effect of sections 47 and 48 of the Entail Amendment Act 1848 (11 and 12 Vict. cap. 36), which are referred to in the petition, is that from and after the passing of that Act it was no longer competent to limit the interest of any person in an heritable estate in Scotland to a liferent, provided that person was born after the date of the deed conferring the interest in his favour. It was further provided by these sections that such person should be deemed and taken to be a fee-simple proprietor, and that if of full age he should have right to make application by way of petition to the Court of Session setting forth the facts and referring to the Act, and craving the Court to pronounce an act and decree declaring him fee-simple proprietor of such land or estate and unaffected by any conditions, provisions, restrictions, or limitations of the deed.

The effect of these sections appears to be that no limitations of the nature of a liferent can be effective against a beneficiary unless that beneficiary was in life at the date of the deed under which he takes benefit, but the right to apply to the Court for an act and decree declaring the beneficiary to be a fee-simple proprietor was thereby limited to a party of full age born after the date of the grant in his favour.

By section 17 of the Entail Amendment Act 1868 (31 and 32 Vict. cap. 84) the above-mentioned provisions of the Entail Amendment Act 1848 were extended to moveable and personal estates and so became universal in their application.

By section 11 of the Entail (Scotland) Act 1882 (45 and 46 Vict. cap. 53) it was provided that in every case where it was competent for an heir in possession of an entailed estate, being of full age, and not subject to any legal incapacity, to make an application to the Court under the Entail Acts, it should thereafter be competent for the tutors of an heir in possession to make such application, provided only that such application was not for authority to disentail the entailed estates.

The petitioner has presented a petition under the Trust Acts for authority to sell part of the Falkland estate and ‘The Priory,’ St Andrews, and this petition is at present in dependence before the Honourable Lord Blackburn, but she has been advised that such petition cannot be proceeded with until it is determined whether her pupil son has the status of a proprietor in fee or not. The question of the expediency of granting the power of sale sought will, in the reporter's opinion, fall to be dealt with under that petition, but it may be mentioned that it is intended that the price of any subjects sold should be invested in the names of trustees to be appointed by the Court.

It would appear that had the Falkland estates been held under a deed containing the usual restrictions of an entail, the petitioner, as tutrix, could have presented an application founding upon section 11 of the 1882 Act and section 47 of the 1848 Act for authority to sell the said part of the Falkland estate and ‘The Priory,’ St Andrews, but inasmuch as the Falkland estates are held under a deed which is not of the nature of an entail, there is no express statutory provision upon which the petitioner can found.

The present petition is an application to your Lordships to exercise the nobile officium of the Court and to grant relief from a position which appears to arise from an omission in the Entail Statute of 1882 to extend its provisions to fee-simple proprietors of lands in Scotland or proprietors under limitation by way of liferent trust or otherwise.…

The reporter is satisfied that the facts and circumstances are accurately set forth in the petition, and having carefully considered the prayer thereof he humbly begs to submit the view that the said sections of the Entail Act of 1848 ought to be made applicable to the present case, and that it would be contrary to public policy that a right to have the said Michael Duncan David Crichton-Stuart declared a fee-simple proprietor (which would have been competent had he been of full age, or had he, being a pupil, held the estates under the fetters and restrictions of a strict entail) should not be available to him when he takes his right under a deed which does not contain these fetters and restrictions, more especially as this position arises from what is obviously an unintentional defect in a public statute.”

The petition was heard by the Second

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Division on 19th June 1921, and was remitted for further hearing to a Court of Seven Judges, by whom it was heard on 27th June 1921.

Argued for the petitioner—Under section 48 of the Entail Amendment Act 1848 the pupil was at present fee-simple proprietor of the estate. An application for a declarator to that effect could undoubtedly have been made by him if he had been of full age; the question was whether his tutrix could now make the application on his behalf. The Entail Amendment Act 1848 went out of its way to deal with matters which did not relate to entails, but the subsequent Entail Acts had omitted to deal with these matters, and had regard to entails alone. The deeds referred to in the present petition did not constitute an entail within the meaning of the Entail Acts, but sections 47 and 48 of the Act of 1848 were not limited to entails. Section 48 rendered ineffective the restrictions to a liferent contained in any deed dated after the Act and limiting the interest of a person born after the date of the deed. The following statutes were referred to—Entail Amendment Act 1848(11 and 12 Vict. cap. 36), sections 47 and 48; Entail Amendment (Scotland) Act 1868 (31 and 32 Vict. cap. 84), section 17; Entail Amendment (Scotland) Act 1875 (38 and 39 Vict. cap. 61), section 12 (2); Entail (Scotland) Act 1882 (45 and 46 Vict. cap. 53), section 11. The nobile officium of the Court was sufficient to enable the Court to supply an omission in a statute in furtherance of the objects of the statute. In the present petition the pupil had the estate of right as a fee-simple proprietor, though not of title, and the exercise of the nobile officium of the Court could competently be invoked in order to give him the title—Stair's Inst., iv, 3, 1; Act 1540, cap. 93; More's Notes on Stair, ccclxxiv; Erskine's Inst., i, 3, 22; Bankton's Inst., iv, 7, 24; Mackay's Practice, i, pp. 209, 214–15; Finlay v. Magistrates of Linlithgow, 1782, M. 7390; Gordon v. Grant, 1765, M. 7356; Fife, 1844, 6 D. 686; Thomson, 1863, 2 Macph. 325, per Lord Justice-Clerk Inglis; Stewart v. Chalmers, 1864, 2 Macph. 1216, per Lord Justice-Clerk Inglis at p. 1219; Tod, &c. v. Anderson, &c. 1869, 7 Macph. 412, per Lord Justice-Clerk Patton, 6 S.L.R. 265.