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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Francis J. S. Hay and Others v. W. D. O. Hay Newton [1870] UKHL 2_Paterson_1758 (9 April 1870) URL: https://www.bailii.org/uk/cases/UKHL/1870/2_Paterson_1758.html Cite as: [1870] UKHL 2_Paterson_1758 |
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Page: 1758↓
(1870) 2 Paterson 1758
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 97
Second Appeal.
Subject_Entail — Reserved Power — Heir granting bond of provision on deathbed
— Terce — Locality —
N., the heir of entail in possession, validly granted a bond of annuity under the Aberdeen Act in
favour
of his
wife
in 1860. In 1861 he
executed, under the Rutherfurd Act, a new entail,
with
![]()
consent
of the next heirs, and in his affidavit he stated, that no bond of provision then existed affecting the estate. Both entails excluded terce, and reserved power to the heir to make provision
for
![]()
widows
by
way
of locality and
for
![]()
children.
On
deathbed
N.,
without
noticing the previous bond of annuity, granted a
deed
of locality to his
wife,
and a bond of provision to his younger
children.
The heir at law having raised an action of reduction of all the three
deeds:
![]()
Held (affirming judgment), (1). That N.
could
not be
deemed
to have executed the
deeds
of locality and of provision to
children
under a
faculty
or power, and that the heir
was
entitled to reduce them ex
capite
lecti; (2). That the bond of annuity had been revoked by the re-entailing of the estates; (3). That
during
the interval of re-entailing the estates (
which
he bound himself to
do)
the
widow's
terce
did
not attach.
These _________________
1 See previous report
5 Macph. 1056:
39 Sc. Jur. 594.
S. were
three appeals
from
the judgment of the
First
Division
of the
Court
of Session arising out of the
construction
of the entails of the estate of Newton, and bonds of provision granted by the late John Stuart Hay Newton of Newton, the
father
of the respondent,
William
Drummond
Ogilvy Hay Newton of Newton,
who
is the heir of entail in possession. The late Mr. Stuart Hay Newton
died
in 1863, and
when
on his
deathbed
he executed the
following
deeds:—First,
a
deed
of locality binding his heirs to infeft his
wife,
Mrs. Hay Newton, in liferent
during
all the
days
of her life in
certain
locality lands specified in the
deed;
second, a bond of provision in
favour
of his younger
children
for
£4000. In 1860 he had also executed a bond of provision and annuity in
favour
of his
wife
for
£500 a year, purporting to
do
so under the powers of the Aberdeen Act. The respondent, the heir of entail, raised three several actions to reduce these
deeds.
The
first
action
was
to reduce the
deed
of locality, the second to reduce the
deed
of provision in
favour
of the granter's
wife
under the Aberdeen Act. The third action
was
to reduce the bond of provision in
favour
of the two younger
children.
As to the
first
action, the original entail of the estate of Newton
contained
a
clause
to this effect, “reserving and excepting always
furth
and
from
the said
clauses
irritant
full
power and liberty to me and the said heirs and members of tailzie above mentioned, to grant liferent infeftments to my lady and their ladies and husbands by
way
of locality allenarly in lieu of their terce and
courtesie,
from
which
they are hereby excluded, not exceeding a third part of the said lands and others, so
far
as the same is
free
and unaffected
for
the time
with
former
liferents and real
debts,
and after
deduction
of the annual rents and personal
debts
that
do
or may affect the same;” and there
was
a like exception of provisions
for
the younger
children.
The pursuer
contended,
that this
deed
was
executed on
deathbed,
and it
was
invalid,
whereas
the
defender
contended,
that such bond, being made under the
faculty
above
contained,
it
was
excepted out of the law of
deathbed.
As to the second action, the validity of the bond of provision to the heir of entail's
wife
under the Aberdeen Act, the pursuer
contended,
that the bond
was
not
delivered
till
within
six
days
of the granter's
death,
and
while
he
was
on his
deathbed,
and that the bond
was
revoked by a
deed
of entail executed by the granter in 1861,
which
conveyed
the estate to the pursuer
free
from
any such burden; and moreover, under the Rutherfurd Act the power to grant such bonds
was
taken away
from
heirs,
Footnote
_________________
C.
L. R. 2 Sc. Ap. 13:
8 Macph. H. L. 66;
42 Sc. Jur. 404.
Page: 1759↓
Sir R. Palmer Q.C.,
and
Anderson Q.
C.,
for
the appellant, Mrs.
Ferguson,
and the younger
children.—1.
As to the
deed
of locality. The
deed
cannot
be
challenged
ex
capite
lecti, because it
was
granted under a reserved power or
faculty.
It is
competent
to exercise such a power on
deathbed.—Ersk.
iii. 8, 98;
Douglas v.
Douglas,
2 Br. Sup. 147;
Hay v. Seaton,
M. 3246;
Brown v.
Congleton,
M. 3251;
Bertram v.
Weir,
M. 3258;
Buchanan v. Buchanan,
M. 3285;
Pringle v. Pringle,
2 Paton, Ap. 130. The
deed
of locality
was
made in pursuance of the
clause
of reservation in the
deed,
and purports to be so made. It is said, that the
full
fiar
of an estate
cannot
exercise a
faculty,
and that in the present
case
the late Hay Newton executed the
deed
as
fiar.
But that
doctrine
only applies—(1)
where
the heir
can
obtain the estate
without
the aid of the
liege poustie
deed
containing
the power, that is,
when
he
can
make up a title passing over the
deed;
(2)
where,
although the right of the heir to the estate
depends
on the
liege poustie
deed,
he
can
maintain that the
deathbed
deed
was
not an exercise of the power. The
doctrine
does
not apply in
cases
where
the powers reserved in the
disposition
qualify the heir's own title, and
where
it is a
condition
of the heir's title, that he shall recognize his ancestor's title
deed.—See
cases,
supra; Ersk. iii. 8, 98; Bank. iii. 4, 48; Brodie's Stair, 516;
Forbes v.
Forbes,
2 Paton, Ap. 8;
per
D.
716. Moreover,
whatever
may be said as to the other burdens on heritage, provisions to
widows
and younger
children
under the Aberdeen Act
could
be made by an heir of entail in possession
while
on
deathbed.
The Statute
does
not expressly exclude the power of making such
dispositions
on
deathbed,
and it must be presumed the power exists. Even irrespective of the above arguments, the
deed
of locality is valid on the ground of onerosity,
for
terce
was
excluded and the provision of locality substituted —
Forbes v.
Forbes,
2 Paton, Ap. 8;
Campbell v.
Campbell’,
16th
Dec.
1818,
F.
C.;
Jackson v. Gourlay,
15 S. 313. Not only
was
this
deed
of locality a surrogatum
for
terce, but
for
the previous bond of provision granted in 1860; at least the
deed
of locality is valid to the extent of the terce. At the time the old entail
was
at an end the
wife's
right to terce attached, and it
cannot
be got rid of afterwards by any
deed
to
which
she
was
not a party.
2. As to the wife's
bond of provision. If the
deed
of locality is held to be void, the effect must be to set up the bond of provision,
for
it
did
not revoke the bond. The bond
contained
a
clause
dispensing
with
delivery.
The bond being onerous, there
was
in the
circumstances
either
delivery
or the equivalent of
delivery
of the bond, the husband being the proper
custodier
for
the
wife—Ersk.
i. 2, 44; Bell's Pr. § 24; Menzies on
Conveyancing,
179;
Lindores v. Stewart,
M. 17,006;
Monro v. Monro,
M. 5052.
If the effect of reducing the deed
of locality merely be to set up the bond of provision, then the heir
cannot
challenge
the
deed
of locality except in so
far
as it gives the
widow
a greater interest in the lands than the bond of annuity gives. The heir is not otherwise prejudiced to a greater extent, and he
can
only object to a
deathbed
deed
in so
far
as it prejudices him—
Mure v. Mure, 1st June 1813,
F.
C.;
9th June 1818,
F.
C.
3. As to the provision for
younger
children,
the same arguments apply
which
have been urged in
favour
of the
wife
as to the
competency
of exercising the power or
faculty
on
deathbed.
The
Lord Advocate (Young), and
Dean of
Faculty
(Gordon),
for
the respondent.
[
Westbury
are all satisfied, that this exercise by the late Mr. Newton of the right of making the
deed
of locality and bond of provision
for
younger
children
was
not the exercise of any
faculty
or reserved power, but
was
the act of one
who
was
full
fiar
quoad those points. And you need not address yourselves to that argument. But the points left
for
you to notice are these,
whether
the
deed
of locality might not be good as a substitution or surrogatum
for
the bond of provision, and
whether
the effect of holding the
deed
of locality invalid is not to restore the bond of provision.]
The bond of provision was
never
delivered
to the
wife.
It
was
never seen by or known to her till she
was
told it
was
superseded. The husband still had right to revoke it, and he
did
revoke it. Even if the bond be taken to have been so
delivered,
it
did
not
confer
any vested right or interest upon her so as to prevent the husband executing a new entail
with
the legal
consents.
Page: 1760↓
Cur.
adv. vult.
Chancellor
Hatherley
case
there are several appeals arising in three
different
actions, the subject matter of the several appeals being this: Mr. Hay Newton,
deceased,
was
an heir of entail, under an entail
which
had been substituted under the Rutherfurd Act
for
a
certain
other tailzie
which
had existed since the year 1724, by
which
the lands in question in entail
came
to Mr. Hay Newton. Mr. Hay Newton, before the Rutherfurd Act, and
whilst
he
was
heir under the old
deed
of tailzie of 1724, executed a bond of provision in
favour
of the appellant, his
wife,
who
has since married again, and by that bond of provision he secured to her an annuity of a
certain
amount,
which
bond of provision he
was
competent
to execute, by virtue of the provisions of the Aberdeen Act. It
was
a provision to take effect after his
decease.
The bond
which
he so executed remained in his
custody
until very shortly before his
decease,
to the time, indeed,
when
another instrument
was
executed, upon
which
also a question arises in the present
case.
The instrument having been thus executed under the Aberdeen Act, he proceeded subsequently, under the Rutherfurd Act, to make a new arrangement (if I may so term it) of the tailzie,
with
the
concurrence
of those
who,
under the Rutherfurd Act, are
directed
to
concur,
namely, the other succeeding heirs of tailzie, and by the new entail there
was
reserved a power, by
deed
of locality, of making provision
for
the
widow,
to a
certain
extent, and there
was
also reserved a power of making provision
for
the
children
of the marriage.
This being so, he executed an instrument, which
is
confessedly
an instrument on
deathbed,
by
which
he made provision by
way
of locality
for
his
widow.
And he executed also a
certain
instrument of provision
for
the
children,
as to
which
a single question arises,
which
is,
whether
or not the instrument
which
he executed is to be exempted
from
the law of
deathbed,
in
consequence
of its being executed by virtue of a
faculty,
and not by virtue of the interest of Mr. Hay Newton in the estate. The question as regards his
widow
goes
further
than that, because, as regards the
widow,
the question is raised (as it is by the
children)
of its being a
deed
of locality exempted
from
the law of
deathbed,
in
consequence
of its being executed by the
way
of
faculty,
not by
way
of interest in the estate. And
further
than that, she says, that the act
was
not to the prejudice of the heir; and she relies upon two grounds, namely,
first,
that the
deed
of locality, being a substitute
for
the bond of provision,
was
founded
upon onerous
conditions
and
considerations.
And
further,
she says she is entitled to the right of terce in
certain
lands, part of the lands in question,
which
again
would
have the effect of giving a validity to the
deathbed
provision
which
otherwise
confessedly
it
would
not have. I say
confessedly,
subject, of
course,
to the previous question,
whether
or not he executed it by virtue of the
faculty.
This being so, the decisions
of the
Court
in Scotland had been adverse to Mrs. Hay Newton, and they have been adverse also to the
children.
They have been adverse to the
children
upon the one single point
which
I have referred to, but they have been adverse to Mrs. Hay Newton on all the points she raised in the
discussion.
The question now before your Lordships is,
whether
or not that
decision
of the Lord Ordinary, and the subsequent
decision
of the
Court
of Session, should or should not stand?
Now, under the original tailzie of 1724, I believe there has been no dispute
or question before us as to the validity of the bond of provision
per se under the Aberdeen Act, supposing that instrument to be a still existing instrument, supposing it to have been
delivered
originally, and having been
delivered
to have remained uncancelled and unaffected by anything that subsequently took place. There is a question, no
doubt,
as to
whether
or not the instrument
was
ever
duly
delivered,
inasmuch as it is said, that, after its execution,
when
it
was
duly
attested, it remained in the
custody
of Mr. Hay Newton. It
was
never in a literal sense handed over to the
widow;
but shortly before his
death,
after the execution of the
deathbed
provision, he sent the bond by his agent, Mr.
Dalgleish,
to Mrs. Newton, or rather Mr.
Dalgleish
himself subsequently sent the bond to her,
with
a letter in these terms:—“As I understand that Mr. Newton
wishes
that you should see the
former
bond of provision and annuity in your
favour,
which
is now superseded by the
deed
of locality
which
I send you to-
day,
the
form
of providing
for
the annuity has been altered, in
consequence
of the new
deed
of entail having been granted subsequent to the Rutherfurd Act having been passed,
which
provides, that the Aberdeen Act shall be inapplicable to such
deeds
of entail.” And he sends the bond accordingly. It is only in that mode, that the bond
was
ever handed over to Mrs. Newton. Now, as regards the question of
delivery,
it has not appeared to me very material
whether
it is
considered,
that the
deed
was
delivered
or not, if it
were
revoked. Being an instrument to take effect after
death,
by the law of Scotland the instrument
Page: 1761↓
Now, with
regard to this instrument, it not only
was
kept by Mr. Hay Newton in his own possession, and
was
never parted
with
until it
was
handed over to Mr.
Dalgleish
in the mode I have just
described,
with
a letter saying, that it had been superseded, but the
conduct
of Mr. Newton has been
considered
by the learned Judges in Scotland, and I think justly so
considered,
to have operated
distinctly
as a revocation, it being
within
his power to revoke it by this bond of locality. Because
what
took place
was
this: in order to avail yourself of the Rutherfurd Act, it is necessary to specify all the obligations
which
exist upon the estate at the time that the operation is performed of re-settling and re-arranging the tailzie in
compliance
with
the Rutherfurd Act. It is incumbent upon the party so making the re-settlement to specify all the instruments
which
affect it, in order that he may preserve those instruments
with
the
consent
and approbation of those
whose
concurrence
is necessary to enable him to make the re-settlement; of
course
the
circumstance
of
what
charges
were
or
were
not affecting the property
would
be an item of importance requiring
consideration
on the part of all those
who
were
asked to acquiesce in the rearrangement. Accordingly a statement
was
made by him on oath,
which
seems to have been required in
consequence
of there being some infants
concerned
in the
consent
given to the arrangement, and the intervention of the
Court
being necessary in that respect. He made an affidavit, in
which
he
distinctly
stated, that there
was
no bond of provision, and that there
were
no instruments
whatsoever
affecting the estate other than some
which
he then referred to, but
distinctly
omitting the mention of any instrument of this
description.
That
declaration
was
made by him
distinctly,
advisedly, and solemnly, and is
wholly
inconsistent
with
any intention on his part, that this instrument should remain as one having any effect.
In this view I concur
entirely
with
the judgment
which
has been pronounced in the
Court
below by Lord
Curriehill,
which
was
the unanimous
decision,
I believe, of all the Judges. In that
decision
he makes these observations:—“That provision
would
have been effectual in virtue of the provisions in the Aberdeen Act, if the granter had
continued
to hold the estate exclusively on the title upon
which
it
was
possessed by him at the
date
of that bond, and if, moreover, he had never revoked or innovated that provision. But that bond
contained
merely a
mortis
causâ
provision,
which
the granter
could
render ineffectual at any time by
destroying
it, by revoking it, or by otherwise indicating his intention that it should be inoperative, and in my opinion he
did
do
so, by granting the
deed
of 17th July 1861, and by the proceedings under
which
he obtained authority to grant it. Although the restrictions
which
were
imposed upon the owner's right by the original entails of 1724 and 1842
were
continued
by the
deed
of 1861, and some other restrictions
were
added, yet it
was
expressly
declared
by that
deed,
that the granter himself, and his heirs of tailzie, should henceforth enjoy and possess the said lands, barony, and others, by virtue of their present tailzie and infeftments, rights and
conveyances,
to
follow
hereupon, and by no other right or title
whatsoever.”
He refers also to an affidavit
which
had been made, and he says, that the affidavit is
dated
4th of June 1863, and it sets
forth,
chat
Mr Newton appeared, and being solemnly sworn and interrogated,
deponed
inter alia, “there are no provisions to husbands,
widows,
or
children,
affecting, or, that may be made to affect, the
fee
of the said entailed lands or others, and the heirs of entail.”
It appears to me, therefore, that in that state of circumstances,
Mr. Hay Newton, having the power of
declaring
the bond to be at an end, and having made that solemn
declaration,
that no such bond existed, must be taken to have exercised that power of
control
which
he had over the instrument, and in that respect to have
destroyed
the instrument he had so executed. No
doubt,
at the time he
did
so, he
was
contemplating
the executing of a
deed
of locality. It is an unfortunate
circumstance
as regards the lady, that that
deed
was
not executed until it
was
too late, but he probably
contemplated,
by executing that
deed
of locality, to make the same provisions
which
he had made by the bond. And he therefore probably thought himself justified in revoking the
former
instrument, and he thought himself justified in saying solemnly upon oath, that he had handed over the estate,
free
from
any instrument or provisions
whatsoever,
reserving to himself as he
did
the right of making the provision he
desired
for
his
widow
by a
deed
of locality such as he afterwards attempts to execute. Then, that being so as regards the bond of provision, the
first
question that arises as to the
deed
of locality providing
for
the
widow,
and the
deed
making provision
for
the
children,
is,
whether
they
can
be maintained, although executed on
deathbed,
on the ground, that they
were
executed by virtue of a power reserved to Mr. Newton under the entail, and not by virtue of an authority
which
he himself held and possessed as the owner of the estate in tail.
Now, the learned Judges have pronounced their opinion in the Court
below,
which
seems
founded
on accurate reasoning, although that reasoning may be somewhat refined, as it always is in all these questions of
feudal
holding. The reasoning proceeds upon grounds analogous to
Page: 1762↓
Now, in that state of things, the heir has a right to complain
of
what
has been here
done.
The heir
cannot
complain
of any exercise of a
faculty
which
has been granted to another person in addition to another lesser estate
which
has been granted to him, because he is not the heir of the person
who
is executing the instrument; he is the heir of the person
who
created
the life interest, but he is not the heir of the person
who
has the life interest to
which
the power has been superadded. But here Mr. Hay Newton, exercising that authority
which
remained in him unfettered and unrestricted, has effected a
disposal
of the estate by an instrument executed on
deathbed,
which
was
to the prejudice of him
who
would
succeed him as
fiar
under the same tailzie under
which
his ancestor held. In this state of
circumstances,
this gentleman, the heir of tailzie,
who
was
the successful party in the
Court
below, had a right, as it seems to me, to quarrel
with
and reduce the instrument
which
was
executed by Mr. Hay Newton upon his
deathbed
against the interest of the person
claiming
under him as heir.
The case
of
Pringle v. Pringle,
which
has been referred to in the argument, is a very
clear
case,
and there is only one
case,
that of
Forbes v.
Forbes,
which
for
a moment
created
any
doubt
or
difficulty
in my mind on the point. The
case
is referred to by Lord
Curriehill,
and to those
who
are better acquainted
with
the
whole
system of the administration of the Scotch law than I profess to be, it
will
probably present itself in so
clear
an aspect as not to require any
further
notice. That
case
was
simply this:—A Mr.
Forbes
executed an instrument upon his marriage, by
which
he gave a liferent interest to himself and his
wife,
and he then reserved such an amount of interest to himself as, according to the
whole
purport and the effect of the
deed,
(the subsequent limitation being to the heir of the marriage,)
would
have left undoubtedly Mr.
Forbes
able to execute any instrument
whatsoever,
which,
as regards third persons,
would
pass the estate, but he had also in that instrument
covenanted,
that he
would
not execute any instrument
whatever,
which
would
bind or affect the estate as against the heir, and as between himself and the heir, he
was
bound by that engagement. In the
case
of
Forbes v.
Forbes,
it is said, “Lord
Forbes,
the
father,
entered into an antenuptial
contract
of marriage
with
his
wife,
Dorothea
Dale,
by
which
he bound and obliged himself to infeft and seize him and the said
Dorothea
Dale,
and the longest liver of them in liferent,
for
her liferent use allenarly, and the heirs male to be procreated betwixt them, in
fee.
Further,
by this
contract,
Lord
Forbes
put himself and his heirs under a limitation not to alter the order of succession, nor even to
contract
debt
in prejudice of the heir of the marriage. A reserved power is made in
favour
of Lord
Forbes,
any time in his lifetime,
et etiam in articulo mortis, to make such provision
for
his said younger
child
or
children
as he may think
fit,
not exceeding £3000. In
case
Lord
Forbes
should
die
without
making such provision, it
was
declared
lawful
for
Lady
Forbes
to exercise the power. Lord
Forbes,
nine
days
before his
death,
and
when
on
deathbed,
executed three bonds of provision in
favour
of his three
daughters.
The heir at law resisted the payment of these bonds on the head of
deathbed,
and the
Court
of Session sustained his
defence.
The
Page: 1763↓
Then, it is said, that the bond of provision existing made some difference
with
regard to the provision
for
the
widow
by the
deed
of locality. I think that has been sufficiently
disposed
of
when
the bond itself has been
destroyed.
Therefore I need not pursue the
case
as regards the bond. Holding the bond to have been revocable and revoked, of
course
it
could
have no influence as supporting the
deed
of locality.
But then a question has arisen which
required a little more looking into, namely,
with
regard to the lady's right of terce. I think that
with
regard to all the lands excepting two small properties
called
Long Newton and Kidlaw, the
whole
property
was
held upon instruments
which
fully
and
completely
and
directly,
and by the terms of the instrument, excluded the Lady
from
terce.
With
reference, however, to those particular lands, they are in a somewhat peculiar position, viz. this: There
was
a moment undoubtedly in
which
they existed in the husband, Mr. Hay Newton, unentailed, and it is upon that instant of time that the lady places her hand, and says, Then and there my right of terce arose, and nothing
could
subsequently be
done
to affect that right of terce. But one is obliged to look at the
circumstances
to see in
what
manner this property
was
for
a short position of time in the possession of the husband. Now, it
was
in this
way:
All that
was
intended to be
done
was
this. A
disentailing
took place
with
reference to these lands in question, accompanied by an express obligation on the part of Mr. Hay Newton, that the property should be re-entailed.
That obligation is expressed in a letter in which
we
find,
that Mr. John Stuart Newton presented an application to the
Court
of Session
for
disentail
of the said part of the pasture lands of Kidlaw and Longnewton mentioned in the preceding article. Mr. James
Webster,
S.S.
C.,
was
appointed tutor
ad litem in that application on behalf of
Francis
John Stuart Hay, the second son of the petitioner, being the second
consenting
heir (he
was
then an infant). The
disentail
was
carried
through after the petitioner had granted to Mr.
Webster
a letter in the terms
following:—“
Edinburgh, 19
Atholl
Crescenl,
5
th June 1863.—To James
Webster,
Esq., S.S.
C.—Sir,—With
reference to the petition presented by me to the
Court
of Session on 13th March last
for
approval of the instrument of
disentail
of those parts of the pasture lands of Kidlaw and Longnewton therein specified, and
for
authority to uplift the balance in the hands of the trustees under the Newton Estate Act (4th and 5th Victoria,
chapter
33) also therein specified, I hereby undertake that the
whole
of the lands above referred to,
with
the exception of as much thereof as
will
be equal in value to £1000, being the balance of the provisions made by the late
William
Waring
Hay Newton, Esq. of Newton, my
father,
conform
to bond of provision executed by him on 19th November 1810,
codicil
thereto,
dated
1st August 1820, both registered ‘in
certain
ways,’
shall immediately after the instrument of
disentail
is approved of by the
Court,
and recorded in the Register of Taillies, be re-entailed by me on the same series of heirs
which
are
contained
in the
deed
of entail of the lands and barony of Newton, under the exceptions therein mentioned,
which
was
executed by me on the 17th, and is recorded in the Register of Taillies the 30th
day
of July 1861.”
And accordingly we
find,
that this instrument of
disentail
took effect, and then the re-entail took effect, and then
what
is
called
the narrative of the
deed
of entail of the 2d October 1863 is as
follows:—“And
whereas
I am
desirous,
and it is proper,
with
reference to the understanding upon
which
the procedure
for
disentailing
the
foresaid
lands and others
was
carried
through, to execute the
disposition
and
deed
of entail,” and so on,
which
he proceeds to
do.
In other
words
Page: 1764↓
That being so, the grounds alleged for
supporting the
deed
of locality appear to me to
fail,
and the
consequence
is, that the appeal must necessarily be
dismissed.
I
do
not know
what
your Lordships
will
think as to
costs.
I
will
leave it to your Lordships to say,
whether,
considering
the
circumstances
of the
case,
this
case
falls
within
the
description
of
family
suits
with
respect to
which
we
are
willing,
in
certain
cases,
to regard the parties as being
desirous
of obtaining the
directions
of the
Court.
Otherwise the strict rule
would
apply
with
respect to
costs.
Chelmsford
Lords, at the
close
of the opening argument on behalf of the appellants, the learned
counsel
for
the respondent
were
informed that your Lordships
were
of opinion, that the
deed
of locality of the 31st October 1863
was
not protected
from
reduction
ex
capite
lecti, on the ground of its being granted in the exercise of a
faculty,
but that, having been executed by the granter in virtue of rights and powers
which
he possessed as owner of the estate, it
was
challengeable
by the heir.
It was
contended
for
the appellant, that the
case
of
Forbes v.
Forbes,
was
a
direct
authority in
favour
of their argument, that the grant of the
deed
of locality
was
made in the exercise of a
faculty;
and their
counsel
complained,
that Lord
Curriehill,
in his judgment upon this point, took no notice of that
case.
But the Lord Ordinary,
with
whom
Lord
Curriehill
agreed,
did
advert to
Forbes v.
Forbes,
and
distinguished
it
from
the present
case.
The ground of
distinction
which
he
drew
was,
that, in
Forbes's
case
the heir had homologated the
deed,
and, as Erskine says (iii. 8, 98) in referring to
Forbes's
case
in support of the
doctrine:
“
When
one,
in liege poustie, makes over his estate to his heir,
with
a reserved
faculty
to revoke or burden it, and anytime of his life afterwards exercises the
faculty
on
deathbed,
if the heir has
done
any act importing an acceptance of the
deed
in
which
the
faculty
was
reserved, he
cannot
challenge
the exercise of it upon
deathbed,
for
his acceptance of the
disposition,
with
its reservations and
conditions,
makes him
disponee,
and
disponees
have not the privilege of heirs, and, of
course,
have no right to bring reductions
ex
capite
lecti.” This question being removed, those
which
remain
for
determination
are:—
1
st. Whether
the
deed
of locality is protected
from
reduction on the ground, that the bond of provision in
favour
of the appellant, Mrs.
Ferguson,
furnished
an onerous
consideration
for
it?
2
d. Supposing the
deed
of locality not to be saved
from
reduction on this or any other ground,
whether,
upon the reduction of the
deed
of locality, the bond of provision revived?
There is another totally distinct
question
from
those as to the right of the appellant to terce upon
certain
lands of Kidlaw and Longnewton,
which
during
an interval between their being
disentailed
by her
former
husband and afterwards re-entailed, belonged to him as owner.
None of the questions remaining for
decision
apply to the appeal
from
the interlocutor as to the bond of provision in
favour
of younger
children,
which
is simply reducible
ex
capite
lecti.
Upon the question of the bond of provision in favour
of Mrs.
Ferguson
furnishing
an onerous
consideration
for
the
deed
of locality, this, of
course,
could
only be if the bond
was
in existence, unrevoked, at the time of the making of the
deed.
The Lord Ordinary held, that the bond of provision conferred
a right so
different
in kind and in extent
from
that
which
the appellant
would
take under the
deed
of locality, that it
could
not exclude the action
for
reduction of that
deed.
By the bond of provision the
widow
had a liferent over the
whole
of the lands, by the
deed
of locality she had a local interest in
certain
specified lands,
which
are to yield her a rent equal to one third of the rent of the
whole
lands. The heir might prefer to have the liferent extending over the
whole
of his lands, instead of the
widow
having a portion of the lands themselves, and therefore he
would
have a right to have the locality
deed
reduced. But having elected to reduce the
deed,
the question,
whether
the bond of provision revives,
depends
upon
whether
it
was
revocable, and if so,
whether
it
was
revoked before the making of the locality
deed.
The bond of provision was
made on the 13th of
December
1860, under the Aberdeen Act, 5 Geo. IV.
cap.
87,
which
empowers an heir of entail in possession of entailed estates to infeft and provide his
wife
in a liferent provision out of his entailed lands and estates. The bond
was
never
delivered,
but remained in the possession of Mr. Hay Newton's agent, Mr.
Dalgleish,
until the 2d November 1863, seventeen
days
before Mr. Hay Newton's
death,
when
it
was
sent to the appellant, then Mrs. Hay Newton,
with
the
following
letter
from
Mr.
Dalgleish:—“As
I understand, that Mr. Newton
wishes
that you should see the
former
bond of provision and annuity in your
favour
which
is now superseded by the
deed
of locality
which
I sent you to-
day,
the
form
Page: 1765↓
I do
not think, in order to give validity to the bond of provision, that it
was
necessary that it should have been
delivered.
If nothing had been
done
to revoke it, and it had been
found
at the time of Mr. Hay Newton's
death
in his possession or power, it
would
have been good and available, even
without
the
clause
dispensing
with
its
delivery.
But it
was
in Mr. Hay Newton's power to
cancel
or revoke the bond, and it appears to me, that he revoked it before or at the time of the new entail,
which
was
made under the Rutherfurd Act, 11 and 12 Vict.
c.
36.
Part of the machinery of an entail under this Act is, that the heir of entail applying to the Court
of Session to
disentail
the estate must make an affidavit setting
forth,
(
inter alia,) “that there are no provisions to husbands,
widows,
or
children
affecting, or that may be made to affect, the
fee
of the entailed estate, or the heirs of entail, or if there are such provisions setting
forth
the particulars, and the
Court
is empowered to order such provisions as may appear just to be made
for
such provision, and any person,
who
shall
wilfully
make such affidavit
falsely,
shall be
deemed
to be guilty of perjury.”
Mr. Hay Newton made an affidavit on the 7th June 1861, in terms of the Act, that there was
no provision to
widows
affecting the entailed lands. It is impossible, that he
could
have
forgotten
the bond of provision in
favour
of his
wife
made only six months before, and
we
cannot
attribute to him, that he swore
what
he knew to be untrue. He must, therefore, have
considered,
that the bond
was
revocable at his pleasure, and he must have
determined
to revoke it before making the new entail.
Some stress was
laid in the
course
of the argument upon Mr.
Dalgleish's
letter, in
which
he
writes,
“the bond of provision is now superseded by the
deed
of locality,” as if there had been no previous revocation of the bond.
Taking the whole
of this letter together, its meaning appears to be, that as the
form
of annuity previously granted
could
not be applied to entails under the Rutherfurd Act, therefore the
deed
of locality had been substituted
for
the bond of provision. If the bond of provision had not been revoked, there
would
have been no occasion
for
the
deed
of locality, as the entail under the Rutherfurd Act
would
not have interfered
with
the provision previously made
for
the appellant; the
Court
being empowered under the Act to provide
for
any provisions to husbands,
widows,
or
children
affecting the entailed estates or the heirs of entail. The making of the
deed
of locality is to my mind a strong proof, that there
was
no existing provision in
favour
of the appellant. The bond of provision, therefore, having been revoked, it
could
not
furnish
any
consideration
to uphold the
deed
of locality and save it
from
reduction.
The remaining question is with
respect to the appellant's right to terce on the portions of the lands of Kidlaw and Longnewton,
which
were
disentailed
on the 10th September 1863, and re-entailed on the 2d October
following.
The lands
were
disentailed
with
the
consent
of the respondent and the two next heirs under a
conditional
agreement, that such of them as should not be required to be sold should be re-entailed, subject to the
conditions
and provisions of the entail of 1724, by
which
terce is excluded.
During
the interval of 22
days
between the
disentailing
and re-entailing these lands, they
were
held by Mr. Hay Newton in
fee,
but they
were
held under a transaction
with
the then next heirs of entail, that they should be re-entailed. It appears to me, that they
were
never held by Mr. Hay Newton as unfettered
fee
simple lands, but that he
was
a mere
conduit
pipe through
which
they passed, subject to the obligation of re-entailing them. In the
deed
of entail authorized by the
Court
it is expressly said, that the entail is made “
with
reference to the understanding upon
which
the procedure
for
disentailing
the lands
was
carried
through.”
In my opinion, therefore, the interlocutors appealed from
must be affirmed; and I am afraid, that there is nothing in the
case
requiring an exception to be made to the general rule
with
respect to the
costs
of the appeal.
Westbury
Lords, I have very
few
observations to add. I regret very much, that this appeal has been presented, because the
whole
case
was
to my mind
disposed
of in a most satisfactory manner by the
comprehensive
judgment of Lord
Curriehill.
The principal argument of the appellant is founded
entirely upon a misconception of the
word
“
faculty,”
and of the rule of law
which
says, that a
deed
granted in exercise of a
faculty
shall not be reducible
ex
capite
lecti. The
word
“
faculty,”
in the enunciation of that rule, means a power of
disposition
held by one man over the estate of another. In that
case
the
deed
is not reducible, and
for
this reason, that the power of reduction is limited in the Scotch law to the heir of the granter of the instrument, but
when
the heir of the granter is in no respect prejudiced or
damnified
by the instrument, there is no such power of reduction. Now the heir of the
donee
of a pure
faculty,
that is, of a power of one man to
dispose
of or
charge
the estate of another,
cannot
be
damnified
by the exercise of that power. Therefore, the law has left that
case
an exception to the ordinary rule of
deathbed.
Now here the appellant calls
this a power or
faculty
to grant a
deed
of locality. It is neither
Page: 1766↓
This has been made so clear
in other
decisions,
that I regret very much there should have been such misapprehension as to lead to this expensive appeal.
But then it is said by the appellant: Nay, but the heir at law has accepted the estate under the deed,
reserving
what
he still
calls
a power. The heir at law accepted the estate on the terms of the entail,
which
were
these, that the
fiar
or the tenant in tail, the maker of the entail, might grant
deeds
of locality, but must grant them in
conformity
with
the rule of law, and therefore he must grant them subject to reduction
ex
capite
lecti. That is nothing more than a mode of putting the same argument upon the same ground of
faculty.
But then the appellant complains,
that no attention
was
paid to his argument in the
Court
below,
which
he repeats here in these
words:—“The
appellants have
contended,
that even in the
case
of one
who
is substantially
fiar
and owner of the estate, such reserved powers may be validly exercised on
deathbed
in a question
with
any one
who
is
claiming
and taking benefit under the
deed
which
contains
the power.” The answer to that argument is just
what
has been already stated. The
deed
contains
no power, and if you
call
this a
condition
of ownership, it is a
condition
that must be
complied
with
in
conformity
with
the rule of law. And the rule of law renders subject to reduction any
deed,
even if executed
for
the purpose of performing that
function,
ex
capite
lecti. There is no exception unless you
can
make out, that it is a
faculty
granted to one man to
charge
the estate of another. That is not the
case
of the present appellant. Then the appellants
contended,
that the
cases
of
Forbes v.
Forbes
and
Pringle v. Pringle
were
in their
favour.
I
will
say a
word
upon those
cases,
because they have been much misapprehended. The
case
of
Forbes v.
Forbes
was
a
case
of antenuptial marriage
contract,
which
being
for
valuable
consideration,
bound the heir. The heir tried to avoid it by going back to the earlier title and getting investiture under the earlier title. But the House of Lords held, that the marriage
contract
bound the estate, and bound the heir, and that the
faculty
to grant bonds of provision
was
a
faculty
given to a liferenter
who
had nothing more than a liferent, and, therefore, the bond, if executed upon a power exercised by him, taking effect on his
deathbed,
would
be a power over the inheritance
which
was
limited to another person. It
was
a pure
faculty,
and on that ground the House of Lords, setting up the
contract
as against the heir, set up also the
faculty,
and held that it
was
not reducible
ex
capite
lecti.
The case
of
Pringle v. Pringle
was
not a
case
for
valuable
consideration,
but it
was
a
case
of homologation. It
was
a
case
which
depended
upon
contract,
but not a
contract
for
valuable
consideration;
but the House of Lords held, that it
was
a
contract
which
the heir had assented to, had homologated and
confirmed,
and, therefore, that he
could
not avoid it by resorting to an investiture on an earlier title. And on the ground of the heir's homologation and
confirmation,
they set up the
contract
and arrived at the same
conclusion
which
had been previously arrived at in the
case
of
Forbes v.
Forbes.
N either of these
cases,
therefore, is applicable to this
case,
unless you
can
displace
the observation made by the Lord Ordinary and by Lord
Curriehill,
which
is perfectly
correct,
that this,
which
is here
called
a
faculty,
is no
faculty
at all, that it is nothing more than a reservation of the ordinary
jus
disponendi
which
is incidental to ownership, and
which,
if granted, is granted in respect of ownership, not in respect of a power.
But it is said, that here the widow
is excluded
from
terce, and that, if excluded
from
terce, she gives up the terce, as a
consideration
for
the
deed
of locality. My Lords, that proceeds upon a misapprehension of the
whole
case,
because the
widow's
exclusion
from
terce is absolute and unconditional. It is not made to
depend
on her getting another provision; but
whether
what
is
called
the power—the right to grant a
deed
of locality—
was
exercised or not, or
whether
a bond of provision
was
given or not, the
widow
would
be equally excluded
from
terce.
Then comes
the remaining
fallacy,
which
is, that the
deed
of locality
was
given in place of the bond of provision. The answer unfortunately (and I regret there should be such an answer) is, that the bond of provision,
which
was
dated
in the year 1860,
was
superseded or evacuated—
was
in effect revoked and recalled by the operation of the
deed
of entail of 1861. And the
deed
of locality
was
not attempted to be made until the year 1863.
What
therefore is attempted to be set up as the
consideration
for
the
deed
of locality, or as something on
which
the
widow
may
fall
back, if
deprived
of the
deed
of locality, turns out to have been evacuated entirely on
different
grounds, and therefore
cannot
be prayed in aid of the inefficient and ineffectual
deed
of locality.
Now these things are so well
explained in the very excellent judgment given by Lord
Curriehill,
that I should have thought, that judgment
would
have been satisfactory to every Scotch
Page: 1767↓
Colonsay
Lords, I have really nothing to add to the observations
which
have just been made by my noble and learned
friends.
I think the
flaw
in the
whole
case
of the appellant is assuming this to be a
faculty,
which
it is not.
Interlocutors affirmed, and appeals
dismissed
with
costs.
Solicitors:
Appellant's Agents,
Hunter,
Blair, and Cowan,
W.S.;
Loch and Maclaurin,
Westminster.—
Respondent's Agents,
James
Dalgleish,
W.S.;
William
Robertson,
Westminster.