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SCOTTISH_Shaw_Court_of_Session

Page: 652↓

Kerr

v.

Keith
No. 207.

Court of Session

2d Division T.

Mar. 10 1835

Ld. Mackenzie, Lord Justice-Clerk, Lord Glenlee, Lord Medwyn, Lord Meadowbank.

Miss Euphemia Kerr,     Pursuer.— Rutherfurd— Ivory. William Keith (Cochran's Trustee),     Defender.— Cowan. Alexander Cochran and Curator,     Defenders.— D. F. Hope— Milne.

Subject_Clause—Tailzie—Testament—Personal and Real.—

Two separate deeds of entail having been executed, of the same date, in favour of the entailer's son, and, failing him and his issue, the other members of the entailer's family called in different orders by the two deeds; and the entailer having also, of the same date, executed a general disposition and settlement, conveying certain other lands, and generally his estate and effects, heritable and moveable, to his son, whom failing, to the heirs of tailzie, but in a different order from either deeds of entail, declaring that his son, by accepting this conveyance of the entailed estates, and the heirs succeeding him therein, “stand pledged and engaged to satisfy and procure discharges and extinctions of every debt and obligation, provision and bequest, of every description, created or contracted by me, or incumbent on me, and that in such habile, proper, and effectual manner as that the same shall hereafter cease to exist, or afford action or execution against my entailed estates;” and the son having survived the father, and entered to possession, under completed titles to the whole estates, and thereafter become bankrupt and been sequestrated, without discharging the provisions—held, 1. That the deeds were to be held as one settlement in a question as to this entailer's intention. 2. That the provisions were personal debts of the son as institute in the tailzie, as also as disponee, but did not affect the entailed estates so as to make them attachable therefor. 3. That the parties to whom the provisions were payable were not in the situation of creditors of the entailer, but were only personal creditors of the son. 4. That the trustee having completed titles to the son's liferent in the entailed estates by infeftment, had secured a preference for the general behoof of the son's creditors. 5. Question not decided, whether the heirs of tailzie were, in the circumstances, under a personal obligation for payment of the provisions to be implemented on their succession respectively to the entailed estates.

By deed of entail, dated 3d August, 1809, the late Mr Cochran of Ashkirk conveyed to himself in liferent, and to his only son, Archibald Cochran, now of Ashkirk, in fee, and the heirs whatsoever of his body; whom failing, to his two daughters, Euphan and Jean, in liferent, and to his several grandchildren in fee, in the order therein prescribed; whom failing, to certain other heirs therein mentioned; and, finally, to his own nearest heirs and assignees whomsoever, certain lands and estates belonging to him in the county of Edinburgh.

By another deed of entail, also dated the 3d of August, 1809, Mr Cochran conveyed to himself in liferent, and to his son Archibald in fee, and the heirs whatsoever of his body; whom failing, to his daughters, Euphan and Jean, in liferent, and to his several grandchildren in fee, in the order therein prescribed,—being different from the order in which they were called to the succession in the corelative deed of entail; whom failing, to the heir of entail then in possession of his lands and estate in the comity of Edinburgh, and the succeeding heirs of entail to that estate; and, finally, to his nearest heirs and assignees whomsoever, his lands and estate of Ashkirk in the county of Roxburgh.

Both these deeds contained an obligation on the granter, “and his heirs and successors of every description, to abide by and confirm” the destination so made of his estates—an obligation on the heirs to possess the estates in virtue of the tailzied titles—and prohibitory clauses, with relative irritant and resolutive clauses, expressed in the usual terms, with the exception, that there was no prohibition in either deed against the heirs allowing adjudication to be led for the entailer's debts. In all respects, the two deeds were in similar terms, except in this, that the deed conveying the estate in the county of Edinburgh contained a clause, not in the Ashkirk entail, relative to a sum of £6000, which the entailer had obliged himself by his son's contract of marriage to provide for his son's wife, Mrs Elizabeth Sommerville, and her issue. This clause referred to a provision in regard thereto contained in the granter's general disposition and settlement, to be immediately mentioned, and declared that the heir of his daughter's marriage, in the event of the tailzied succession to both estates opening to such heir, should be bound to accept thereof, in lieu of the marriage provision.

Of the same date with these deeds of entail, Mr Cochran executed a general disposition and settlement, which narrates these two deeds, and proceeds as follows, inter alia:—“And having it now in contemplation (in consequence of the decease of Marion, my youngest daughter) to make certain additional provisions on my grandchildren by Mrs Kerr, and on my two surviving daughters, Euphan and Jean; and considering farther, that it is my meaning and intention that the said Archibald Cochran, my only son, if he survives me, shall be my residuary legatee, after discharging my debts, legacies, and provisions, have therefore resolved to make a final settlement of my affairs, in manner underwritten; but with reference to, and in confirmation of my settlement before-mentioned, and with reference, and pursuant to that resolution, do hereby give, grant, convey, and dispone to the said Archibald Cochran, my son, and the heirs whatsoever of his body; whom failing, to the said Euphan Cochran and Jean Cochran, my daughters, equally between them, and the survivor or longest liver of them two, in liferent allenarly;” whom failing, to his several grandchildren, in the order therein prescribed,—being different from the order of succession contained in either deed of tailzie;—“whom failing, to the heir of entail then in possession of my lands and estate in and about Musselburgh, and the succeeding heirs of entail to that estate, as contained in a separate deed of entail of these lands, executed by me of this date, seriatim, in the order thereby prescribed; whom all failing, to my own nearest heirs and assignees whomsoever; but with and under the burdens, qualities, conditions, and provisions after written, all and whole my lands and estate of Gilston and Overbrotherstones, &c.; as also, all and sundry lands, tenements, and other heritages presently belonging to me, or that shall happen to belong to me at the time of my death,” &c.; “as also, all and sundry debts and sums of money, real and personal, and however due and secured; as also, all goods,” &c. in the usual words of a general conveyance of a personal estate.

The burdens and conditions under which this general disposition was granted were declared to be, that neither the son, nor any of the heirs, should have power to sell or alienate the lands gratuitously; and that the conveyance was “with and under the burden of the payment of all my just and lawful debts and funeral charges; and also with and under the burden of the payment of the following additional provisions to my grandchildren by Mrs Kerr, and my said children, Euphemia and Jean, viz. to Robert, William, Euphemia (the pursuer), and Jean Kerr, my grandchildren by my said daughter Margaret, now deceased, to each of these four the sum of £400 sterling of principal money,” and other similar provisions therein specified.

The deed nominated the granter's son, Archibald, and, failing him, the other heirs and substitutes in their order, to be his sole executors, with this express proviso: “But with, and under the burden of the payment of my debts, provisions, legacies, and others, before and after mentioned, and under the qualities and conditions thereto annexed.”

The general disposition and settlement farther contained the following declaration:—“And whereas, by contract of marriage entered into betwixt the said Archibald Cochran, my son, with my concurrence, and Mrs Elizabeth Sommerville, his late wife, now deceased, of date the 11th day of March, 1802 years, I became bound to provide and secure the sums of £6000 sterling to the said Archibald and Elizabeth in joint fee and liferent; but in security only to her of the life annuity thereby assured to her, in the event of her surviving him, and to the issue of the marriage in fee, under the regulations therein specified, and, inter alia, if there should be but one child, a daughter, procreated thereof, the said provision should be, and is thereby restricted to £4000 sterling, payable at such times and in such proportions as the father should deem proper and appoint; but in default of such appointment, to be payable in manner stipulated by the said contract, to which reference is hereby made: And whereas, by the predecease of the said Elizabeth Sommerville, leaving only one child of said marriage, a daughter, namely, Miss Robina Cochran, she will eventually be entitled to the fee of the said restricted provision, in case she should prefer the same to the more ample provisions and rights of succession which may eventually open to her, and which, if accepted of by her, will preclude her claims under the said contract: And whereas the estate and funds, real and personal, hereby settled by me on my said son in fee-simple, may be nearly adequate to the special burdens with which the same stand charged, as well as the foresaid restricted provision; therefore my said son, by accepting hereof, or my entailed estates, in terms of the settlement thereof, and the heirs succeeding to him therein, stand pledged and engaged, as aforesaid, to satisfy and procure discharges and extinctions of every debt and obligation, provision and bequest of every description, created or contracted by, or incumbent on me, and that in such habile, proper and effectual manner, as that the same shall hereafter cease to exist, or afford action or execution against my entailed estates: And whereas I deem it expedient, for the purposes after mentioned, that after my decease a sum not exceeding £500 per annum shall be set apart from the rents and revenues of the estate of Ashkirk, and stocked out at interest until a capital shall, by progressive accumulation, be raised therefrom to the amount of £6000, the capital originally assured to him under the aforesaid contract of marriage, subject to the regulations therein mentioned; and I accordingly direct and enjoin the same to be so done, at the sight of the trustees after mentioned, namely, William Kerr, John Johnstone, and Thomas Brown, my sons-in-law, or the survivors or survivor of them, who are hereby authorized and empowered to demand and recover such sum annually, not exceeding that before specified, from the rents of the said estate of Ashkirk, as they shall deem necessary, until the aforesaid capital shall be raised therefrom, or by anticipation by larger advances, to that end and purpose, being voluntarily made by the said Archibald Cochran, my son, or the heirs succeeding to him; and to see the same laid out on proper securities, these being always taken out and devised to him in liferent, and also to him and his heirs and assignees in fee; but in trust, for the purposes in the different events after specified, viz. first, in the event of the said Robina Cochran, his daughter, being excluded from the succession to the said entailed estates of Ashkirk and Musselburgh, by an heir-male of his body, for payment to her of the aforesaid restricted provision of £4000 sterling, in terms of her mother's contract of marriage, the surplus or remainder of the said capital being, in such case, at his absolute disposal: But in the event of her succeeding to the said entailed estates in default of heirsmale of his body, then, and in such case, she shall have no claim to that provision, but that the same shall, together with the surplus of the said £6000 sterling, belong to, and be at the absolute disposal of her father; and she shall accordingly be bound to make up titles under her mother's contract to the said special provision, and convey the same to him and his disponees, as a debt affecting the aforesaid fund, but not the entailed estate; and failing my said son and the heirs of his body, the said sum to be liferented by my surviving daughters or daughter at the time, and, on their demise, to descend and belong to such of the children of my said daughters, and the children of the said Mrs Kerr, equally, as are not in possession of any part of my entailed estates before mentioned.”

Mr Cochran survived the execution of these deeds several years, the only alteration made by him having been to increase the provisions and legacies to his several grandchildren by two codicils of date respectively, December 20, 1809, and September 20, and November 3, 1810. He died in April 1812, when his son Archibald succeeded to the two entailed estates, and also to the unentailed lands and other property conveyed by the general disposition and settlement, and titles were completed by him, first, to the two entailed estates under the separate deeds of tailzie, and, secondly, to the unentailed lands conveyed to him in fee-simple by the general disposition and settlement, but not so as to cause the payment of the debts and legacies, under burden of which these last lands were conveyed, to become real burdens affecting the same.

Archibald Cochran continued in possession of the property entailed and unentailed for about nine years after the death of his father, during which time he was quite solvent, but did not discharge the legacies bequeathed to the pursuer and others. On the 30th June, 1821, he was sequestrated, and the trustee on his estate took up and completed titles to the unentailed property, and to the bankrupt's life interest in the entailed estates. This he did by separate titles, and his right was in all respects feudally completed. In course of the sequestration one of the legatees, who stood in the same situation with the pursuer, claimed to be ranked preferably, but this was rejected by the pursuer, and his judgment was affirmed hoc statu by the Court (May 12, 1824). * Claims were, however, made by all the legatees, and by the pursuer amongst others, as personal creditors of the bankrupt, for their several legacies, and they were so ranked, and drew a dividend of 2s. 6d. paid to the personal creditors. Thereafter the present action was brought by the pursuer, concluding that it should be found and declared “that the foresaid provisions, bequeathed to and settled upon the pursuer, with the legal interest of the same, all as fixed and ascertained by the foresaid decree of constitution, under deduction always of the said dividends, or other sums received in part payment and satisfaction of the same, form a burden on the said fee of the entailed estates and rents, and proceeds of the same; or, at least, the said entailed estate, and the rents and proceeds of the same, are liable for the pursuer's provisions as aforesaid; and that the pursuer, in payment and security of her said provisions, and legal interest thereof, is entitled to institute, and follow furth, against the fee of the said entailed estates, and the rents, profits, and duties of the same, all manner of real diligence competent by law against real property, for payment or security of debt; and in particular, that the pursuer is entitled to lead adjudication against the said entailed estates, for the said provisions, principal, interest, and penalty, under deduction aforesaid; or, at least, it ought and should be found and declared, by decree foresaid, that the said Archibald Cochran, and the said substitute heirs of entail,

_________________ Footnote _________________

* Ante, III. 6.
in their order, as they may successively succeed to, and take possession of the said entailed estates, are bound and obliged, as the condition of holding the said entailed estates, and drawing the rents and proceeds of the same, for and according to their respective rights and interests, to satisfy and pay the foresaid provisions, bequeathed to, and settled upon the pursuer, with the legal interest of the same, as fixed and ascertained by the foresaid decree of constitution, under deduction always as aforesaid; and it ought further to be found and declared, that the said William Keith, as trustee on the sequestrated estate of the said Archibald Cochran, and the creditors whom he represents, are not entitled to take any benefit or advantage from, or to draw, in payment of their debts, any part of the proceeds of the said entailed estates, without making payment of the said provisions, bequeathed to, and settled upon the pursuer, with legal interest, as aforesaid; and the same being so found and declared, the said Archibald Cochran, and the said William Keith, ought and should be decerned and ordained to rank and prefer the pursuer, primo loco, upon the rents and proceeds that have been already drawn, or that hereafter may be drawn from the said entailed estates, until such time as her said provisions, and legal interest of the same, fixed and ascertained, as aforesaid, shall be fully paid and discharged.”

The Lord Ordinary (Mackenzie) ordained Cases, on advising which, he pronounced the following interlocutor:—“Finds, That the three deeds executed by the late Archibald Cochran, on the 3d of August, 1809, refer to, and are connected with, one another, and must be viewed as constituting one settlement of his estate, Finds, That in the general disposition, which must be regarded as the last of these deeds, and as forming the completion of the settlement, Archibald Cochran expressly declares, ‘Whereas the estate and funds, real and personal, hereby settled by me on my said son in fee-simple, may be nearly adequate to the special burdens with which the same stand charged, as well as the foresaid restricted provision; therefore, my said son, by accepting hereof, or my entailed estates, in terms of the settlements thereof, and the heirs succeeding to him therein, stand pledged and engaged, as aforesaid, to satisfy and procure discharges and extinctions of every debt and obligation, provision and bequest, of every description, created or contracted by, or incumbent on me; and that in such habile, proper, and effectual manner, as that the same shall hereafter cease to exist, or afford action or execution against my entailed estates: Finds, That this declaration necessarily implies, that the entailed estates were, by the entailer, intended to be subject, not to his debts only, but to his legacies, and that the institutes and heirs of entail were bound to pay off these legacies, as well as debts, in order to clear these entailed estates: Finds, That this declaration is followed by a clause, providing a special arrangement for payment of part of the debt out of the rents of one of these estates; but finds no evidence in the deeds that the liability of the entailed estates, or heirs of entail, was intended to be limited to the effect of this provision: Finds, That the above declaration cannot be held pro non scripto, nor effect be denied to the intention of the maker of the deeds appearing thereby: Therefore, Finds, That the entailed estates are liable to be affected for payment of the legacies libelled, in the same way as for payment of the entailer's debts: And, Finds, That the said estates being so liable, the pursuer is preferable on the rents of these estates to the defender, who claims only by virtue of assignation to these rents from the heir of entail: Finds, decerns, and declares, in terms of the first conclusion of the libel: Finds no expenses due to either party.”

Against this judgment the defender, Keith, reclaimed, on the merits, and the pursuer, on the point of expenses, when their Lordships appointed a hearing in presence.

Pleaded for the Pursuer—

1. No real doubt exists of the construction to be put on the clause referred to by the Lord Ordinary in his interlocutor. It clearly applies to and embraces all the heirs called to the succession of his several estates by the granter—his heirs of tailzie, as well as his heirs general, each in their order. The case of Lord Macdonald, 29th May, 1832, applies directly to the present case, which decided that a clause similar to the present bound all the heirs of the maker of the deeds. See also the observations of Lord Glenlee in the recent case of Baugh v. Murray, which was a case the converse of this. Now, all the deeds are to be considered as one deed, and just as if the clauses in each were repeated in all. And thus the case is to be taken just as if the tailzied deeds had contained this clause; so that there could be no doubt that the heirs of tailzie are bound as well as the heirs general. 2. The next point is, the right of the pursuers to adjudge the tailzied estate. Though the pursuer's provision is not made a real burden, nor is an entailer's debt, it is, by declaration of the entailer, made to affect the estate, and this is sufficient to constitute a preference. The whole question is one of intention. If the entailer has declared that his estates are to be liable, that is enough;—nay, it would be enough, that there is evidence of his belief that the estate might be affected for payment. But, 3. The payment of these provisions is made a condition, on the fulfilment of which the heir's right to possess the estate is declared to depend. Being so, it must affect all possessing the estate through the heir in possession, and consequently the trustee for the creditors of the present heir. It is said that it does not appear on the face of the tailzie. But it was apparent on the face of the tailzie that there were certain burdens imposed in another deed—and those dealing with the heir were bound to look to that deed. Farther, the creditors of the present heir, though they have attached his life-interest, could not exclude the entailer's creditors—their right is an inherent burden, to which they are subject. And this provision has been put, to all substantial effects, in the same condition with a debt of the entailer. Neither could the creditors exclude the attachment of the rents for the sinking fund provided for out of Ashkirk rents by the general disposition and settlement. Yet it does not appear on the face of the tailzie any more than the burden of the provisions. 1

Pleaded for the Defender, Keith—

The first question is, whether the fee of the entailed estate can be attached for payment of the pursuer's provisions; and this depends entirely on the words of the deed, for the pursuer has no right, independently of express permission of the entailer, to attach the entailed estate. She is a mere legatee (See Hill v. Hunter, 14th May, 1818). A single clause of the general disposition and settlement is founded on. The rest of that deed, as well as the deeds of tailzie, afford no countenance to pursuer's pleas, but the reverse. Now two questions arise under the clause founded on, in regard to the entailer's intention:—the one, whether he intended to bind his heirs of entail at all, and the other, whether, admitting that the heirs of entail, as well as the heirs general, were included in the obligation, it was any other than a mere personal obligation laid on them to discharge the provisions, without any power conferred on the legatees to adjudge the entailed lands for payment. It was quite possible that he might impose such a restricted obligation. Clearly, he had not made the provisions real burdens—and did not intend to make them such. Why, then, may he not have contemplated simply laying his heirs of tailzie as they should Succeed under a personal obligation, and still preserving his tailzied estates entirely free from liability? This was submitted to be the correct view, if the heirs of entail were to be held referred to at all in the obligatory words. In this light, the pursuer's situation was that of a mere personal creditor of the bankrupt for her provisions, with no power to adjudge the tailzied estate, like an entailer's creditor. If this be correct, then all the pursuer could do was to have attached for her payment the life-interest of the heir of entail in possession. But this interest has already been effectually attached for the whole creditors by the defender, and a complete feudal title to the entailed estate vested in his person, in so far as the nature of the bankrupt's right permits of the estate being attached. It is of no consequence to say the payment of these provisions made a condition of the right to the estate. Still, it is only a personal condition, and it does not appear on the face of the titles to the tailzied property. In attaching the life interest of an heir of entail, it is the fee of the estate (limited, no doubt, and qualified as in his person) which is adjudged. And the right acquired by the adjudger, when followed by infeftment, must just be as effectual, to the limited extent, as the right acquired by adjudication of a fee-simple estate, and as little liable to be affected by personal conditions

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1 Williamson, June 28, 1826 (ante VI., 1035); Lord Macdonald, May 29, 1832 (ante X., 584); Lord Glenlee's Obs. in Baugh v. Murray, Jan. 14, 1834 (ante XII. 279); Erskine v. Wemyss, May 13, 1829 (ante VII. 594); Hamilton v. Bennett, Feb. 14, 1832 (X. 330). Aff. H. of L., Aug. 16, 1833 (Supp. 105).
and qualities, or by latent equities. There is no ground for saying that creditors adjudging take the estate tantum et tale as it stood in the person of the bankrupt. 1

Pleaded for the Defender Cochran, the Substitute Heir—

The case is one purely of intention. If the maker of the deeds has chosen to declare the heirs of tailzie liable, and not the estate, that is of the essence of the pursuer's right; and nothing is more natural than to bind heirs of tailzie, but nothing less usual than to bind the estates in payment. And so here. The estates are not declared affectable for these provisions. Then, as to liability of the substitute heirs, the facts of the case, as admitted in the record, afford them a complete defence. These provisions were declared real burdens on the unentailed lands, and this is admitted. Now, the trustee completed titles both to the entailed and to the unentailed lands, and he took enough, under the general disposition and settlement, to have paid the provisions in full; and thus an obligation was created against the trustee to pay these provisions, which he must implement. This creates a decisive specialty. This is not a case where the unentailed property has been spent, and the creditors of the heir looked only to the tailzied estates. The creditors take the unentailed property as well as the tailzied, and they cannot shake themselves free of the burdens imposed by the general disposition. It will not do to say that there is nothing on the face of the titles applicable to the burden; for the creditors take under all the deeds, and are bound by what is contained in them all. The pursuer, on the admitted facts, is entitled to have judgment against the trustee; but the substitute heirs, in every view, are free from the obligations. Here was a case of gross and culpable mora to enforce the obligation on the heir primarily liable—and this is a good defence for them in itself. 2

In consequence of the statements in the argument for the substitute heir, the Court allowed a minute and answers from the two defenders severally; and on the case being finally advised, the following opinions were delivered:—

Lord Justice-Clerk.—I am glad we allowed the further discussion, which has produced very able pleadings, and has led us to attend minutely to the deeds, and the conclusions of the summons. In the first place, it is indispensably necessary to attend to the shape of the process. Miss Kerr pursues for her own interest alone, but the claims of many others stand in exactly the same situation. She raises only

_________________ Footnote _________________

1 Brown v. Paterson, Nov. 12, 1834(ante III. 7); Martin v. Porteous, June 21, 1808 (F.C.); M'Intyre v. Marshall, Feb. 3, 1834; Nairn v. Gray, Feb. 15, 1810; Grahame v. Hunter, Nor. 14, 1828(VII. 13); Graham v. Alison, Dec. 3. 1830 (IX. 130); 1 Bell, 52, and 280–2; 2 Bell, 191; Rose v. Drummond, June 11, 1828, (VI. 945); Forbes' Trustees v. Gordon's Assignees, Dec. 14, 1833 (XII. 219); Russet v. Ross's Creditors, Jan. 24, 1792 (10300).

2 1 Bell, 282; Stewart v. Duncan's Trustee, (XI 847); Thomson v. Douglas, Heron, and Co. Nov. 15, 1786 (10229); Wylie v. Thomson, Jun. Jan. 18, 1830 (VIII. 337).
the question, how far her provision can be made effectual against the fee of the entailed estate, or against Cochran's life-interest in it, or against the substitutes; and it is to be kept in view, that it is to this question, whether the provisions are to affect the entailed estate, that the judgment of the Court must be limited. We must lay aside all consideration as to the unentailed funds, which are not involved in the question raised by this summons, which touches only the entailed estate. The Lord Ordinary has found, “that the three deeds executed by the late Archibald Cochran on the 3d August, 1809, refer to, and are connected with, one another, and must be viewed as constituting one settlement of his estate.” As to that part of the interlocutor, I am clearly of opinion, and it is admitted, that the whole three deeds must be looked to as embracing the settlement of the testator, and I have no doubt that they are to be taken in a combined view, as demonstrating his will. Then the Lord Ordinary proceeds: “Finds, that in the general disposition, which must be regarded as the last of these deeds, and as forming the completion of the settlement, Archibald Cochran expressly declares, ‘Whereas the estate and funds, real and personal, hereby settled by me on my said son in fee-simple, may be nearly adequate to the special burdens with which the same stand charged, as well as the foresaid restricted provision; therefore, my said son by accepting hereof, or my entailed estates, in terms of the settlements thereof, and the heirs succeeding to him therein, stand pledged and engaged, as aforesaid, to satisfy and procure discharges and extinctions of every debt and obligation, provision and bequest, of every description, created or contracted by, or incumbent on me; and that in such habile, proper, and effectual manner, as that the same shall hereafter cease to exist, or afford action or execution against my entailed estates: Finds, that this declaration necessarily implies, that the entailed estates were, by the entailer, intended to be subject, not to his debts only, but to his legacies, and that the institutes and heirs of entail were bound to pay off these legacies, as well as debts, in order to clear these entailed estates: Finds, that this declaration is followed by a clause, providing a special arrangement for payment of part of the debt out of the rents of one of these estates; but finds no evidence in the deeds that the liability of the entailed estates, or heirs of entail, was intended to be limited to the effect of this provision: Finds, that the above declaration cannot be held pro non scripto, nor effect be denied to the intention of the maker of the deeds appearing thereby: Therefore, finds, that the entailed estates are liable to be effected for payment of the legacies libelled, in the same way as for payment of the entailer's debts: And finds, that the said estates being so liable, the pursuer is preferable on the rents of these estates to the defender, who claims only by virtue of assignation to these rents from the heirs of entail.” Now, I am free to admit, that, when the case first came before us, I did think we could not refuse to assent to this subsequent part of the interlocutor, then agreeing, as I did, with the view taken as to the intention of the maker. But looking to the words in the general disposition, and looking also to the two deeds of entail, I have now come to take a different view of his intention, and I am satisfied it was not his intention to make his entailed estates liable for these provisions, and that we cannot consider them as in the situation of entailer's debts. He evidently considered that there would be an ample sufficiency to answer all provisions out of the unentailed funds, and, so far from there being any thing indicating the intention that the fee of the entailed estate was to be answerable, the reverse is made out. He says that the heir shall be bound not only to discharge his debts, but the whole provisions and bequests, so that they shall in no way affect his estate; and, fully considering the whole deeds, I am satisfied that that was the intention of the maker of them. And, therefore, it appears to me, that the entailed estate is not liable, even subsidiarily, but that he intended to create merely a personal obligation to discharge the provisions on his son, and each heir who should take under the deed. If he had really meant that the obligation were to be made real, it is impossible that he should not have expressed it in clear and habile terms. But, suppose it possible to hold that it was his intention to make the provisions real burdens on his estate, I am satisfied, by the authorities referred to, that they have not been made real burdens. It must be done in the clearest and most explicit terms, in order to have this effect. If these parties had proceeded immediately against Archibald Cochran, they might have received their provisions, but they leave him to manage as he pleased, till he dissipated the funds out of which the provisions might have been paid. Then, if they are not made out to be real burdens, there is no ground for supporting the first part of the interlocutor, and I am satisfied the case of Lord M'Donald was very different from this. The summons, however, raises further the question of the liability of the heirs of entail in their order. That point has not been decided by the Lord Ordinary, and I would rather abstain from entering into it, and remit to the Lord Ordinary to decide, but I cannot agree with the interlocutor pronounced.

Lord Glenlee.—I am entirely of the same opinion.

Lord Medwyn.—This is a question of intention, and it is a very important and difficult one, and has been anxiously discussed. I have never been able to agree with the Lord Ordinary, though so far I consider the three deeds are to be taken together, as forming one general settlement. It is clear that it was the intention of the maker of these deeds that the provisions should be paid, but it is equally clear that he intended them to be paid out of other funds than the entailed estates. As to the important clause on which the question turns, if it were intended to impose burdens not imposed by law, it is certainly most awkwardly expressed. Making a fund out of the estate to pay the provisions, leads to the expectation, that he was not to lay the burden on the estate; and, accordingly, he takes the heir hound to discharge the provisions. Even as to the unentailed property, I doubt if these were made real burdens, as the provisions are not specified, and I am not satisfied that this was intended. The summons is drawn with an alternative conclusion, and the first conclusion contains an alternative, and for that the Lord Ordinary has decerned. He holds the lands liable to be affected as for entailer's debts. I do not think the provisions have any resemblance to entailer's debts, as they were never binding on the entailer; and I do not think the parties in whose favour they were granted could have secured a preference for them by doing diligence within the three years. No doubt the heir stands pledged to pay them, but only personally. They are not constituted a condition of the grant, nor a burden on the disposition, but only on the heir, who, besides, is taken bound to get discharges, so as to prevent their affecting the entailed estate. There is an expressed intention throughout that they were to be paid out of the other funds. I cannot concur with the Lord Ordinary's view as to the construction of the injunction to obtain discharges that it implied that the provisions were to affect the entailed estates, and that so the heir is taken bound to discharge them. My view was, that this was to prevent the heir from keeping them up as debts against the entailed estate. The trustee, no doubt, takes the rights of the heir tantum et tale, as they were held by him, but he cannot be affected by the personal obligation of the heir; and, therefore, I am of opinion, that the provisions cannot be made to affect the entailed estates, or the interest of the heir.

Lord Meadowbank.—I have considered this question with the most anxious attention, and I regret that I remain of opinion with the Lord Ordinary, differing from your Lordships, that these are burdens effectual against Cochran, or any one in his right. I throw out of view altogether the amount of the claims, which does not affect the question of law, nor did I think how the deed might have been made more clear, as I just take it as it stands; but the grounds of my opinion are these:—First, I must hold that all these deeds are to be considered as one, as if every clause in each deed were repeated in every one of the three, as that is the only result of construing them as one settlement. Secondly, there are no precise words necessary to indicate intention, and the Court, by legal construction, must gather the intention. This is entirely a question of intention, whether Mr Cochran, in executing one general settlement, meant, or did not mean, that the parties receiving the benefit of the landed estate, whether tailzied or not, were to be liable for the provisions. Mr Cochran does not favour one line in particular, for he shows a distinct intention to provide for all parties descended of his own body, and I cannot suppose he meant to limit any of them to the fee of the unentailed estates. He indicates the reverse, for he says that the fee-simple will only “nearly” discharge the debts and provisions, and yet he grants other provisions in codicils. Then, what is it the deeds do? The provision as to the sinking fund is indicative of an understanding, that the estates would otherwise be responsible for the whole. Then look at the clause referred to by the Lord Ordinary, “Therefore my said son, by accepting hereof, or my entailed estates, in terms of the settlements thereof, and the heirs succeeding to him therein, stand pledged and engaged, as aforesaid, to satisfy and procure discharges and extinctions of every debt and obligation, provision, and bequest, of every description, created or contracted by, or incumbent on me:“—Had it stopped there, we might not have been able to draw the conclusion of intention foregone; but, then, it proceeds thus, “and that in such habile, proper, and effectual manner, as that the same shall hereafter cease to exist, or afford action or execution against my entailed estates.” I think we have here got his declaration, that he understood that his provisions and bequests of every description were put on the same footing with his debts. Then, was it incompetent for him to do so? I can see no incompetency, and as I think all that was necessary was to express intention, and that he has done so, I am for adhering.

Lord Glenlee.—No doubt, if the clause in the general settlement is to affect the Ashkirk deed, we must apply it; but even as to clauses occurring in the same deed, a difficult question often arises, whether one clause is to affect matters treated of in another part of it. There is no declaration, totidem verbis, that the provisions were to be on a footing with the debts. This is said to be implied, but I do not see from what such implication follows. I would rather imply the contrary, and that the entailed estate was not to be liable to be adjudged for them. The first thing to be attended to is, what is consistent with common sense, as likely to be his intention. Now, it is clear that he considered that he had left nearly sufficient funds, and to make sure for Robina's provision, he made a separate provision for it. Her provision, however, was a proper debt affecting the estate. In this situation, was it a natural thing for him to suppose it likely that there would be a deficiency in the other funds? He evidently did not expect this, and his impressions turned out true in fact, as he had ample funds. But this was natural to him to suppose, that, unless he took the heirs bound to discharge the debts, &c., they might make away with the funds, and that then these would come against each heir succeeding; and, therefore, he took the heir bound to obtain discharges. If, however, the other construction be adopted, it would entirely defeat any intention he could have had in inserting the clause; and, therefore, on the whole, there seems to me no warrant to imply that he put the provisions on the footing of his own debts, but that they are mere personal debts of the heir.

The Court pronounced this interlocutor:—“Find that the declaration in the general disposition and deeds of entail executed by the late Archibald Cochran on the 3d August, 1809, founded on by the pursuer, do not import as his intention that the estates entailed by him should be liable to the payment of the legacies or voluntary provisions bequeathed by him as his own onerous debts: Find that, under the settlements in question, the pursuer has no right or title to affect the entailed estates for payment of her legacies: Find that, in respect of the title completed by infeftment in the person of the trustee on the sequestrated estate of the present heir of entail in possession, she has no preferable right to the rents of the estate to the prejudice of the trustee and the personal creditors, whom he represents, and that in the sequestration of his estates she must rank as a personal creditor thereon: Therefore, sustain the defences for the trustee, and assoilzie him from the whole conclusions of the libel; find no expenses due to any of the parties, and decern: And, quoad ultra, remit the cause to the Lord Ordinary to proceed further therein as to his Lordship may seem just.”

 SS 13 SS 652 1835

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