Scottish Court of Session Decisions

Subject_1 CLAUSE.
Subject_2 SECT. VII.

Heirs whatsoever. - All Estate whatsoever, Personal or Real. - Lawful Heirs Male. - Heirs and Bairns of a Marriage.

Mrs Mary Drummond
v.
Mrs Agatha Drummond

Date: 17 July 1782
Case No. No 55.

A man disponed “all estate whatsoever, personal and real,” in trust for the heirs of his entail. These words found to comprehend all lands whatever belonging to him.

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Mr Drummond of Blair-Drummond, executed, in favour of the heirs of his body and other heirs seriatim, an entail of his estate, comprehending all his lands, except a small parcel called Norrieston, which was not mentioned in that deed. At the same time, he likewise executed a disposition in favour of certain trustees, of his whole estate, as contained in the entail; and “of all other estate whatsoever, real or personal, or of whatever denomination, which should belong to him at the time of his decease; and that for the purpose of paying and clearing off the debts affecting the estate;” which, when this was done, they were to reconvey to the heirs of entail; but the trust-deed was declared to be, in the mean time, revocable.

He afterwards acquired certain other lands; and having married, obliged himself, in his marriage-contract, to resign the entailed estate in favour of the heirs of the marriage, and the other heirs specified in the entail. Of this marriage, he had a son James; who, dying an infant, survived him only a few months.

One of his sisters, Mrs Agatha Drummond, succeeded as heiress of entail; when Mrs Mary, another of them, instituted an action against her, claiming as coheiress of line, her proportion of the lands not comprehended in the entail, and likewise, as an executrix of James, her share of his moveable effects; in support of which, she

Pleaded: The lands of Norrieston having belonged to Mr Drummond at the time when he executed the deeds of entail and of trust, their not being mentioned in either, is to be considered as owing to an intentional omission; and therefore these lands, together with those other which he acquired after that period, are still unentailed subjects. Neither could come under the general denomination of “all real and personal estate,” these not being adequate terms for the conveyance of lands by the law of Scotland.

With respect to the executry of James, this comprehends the rents of the entailed subjects which became due during his life: For though they did fall under the trust deed, that settlement, in virtue of the reserved power, must be considered as so far revoked by the obligation in the contract of marriage relative to heirs.

Answered for the defender: The general description, “all other estate whatsoever, real or personal,” is of itself sufficient to comprehend all the lands belonging to the granter; but more especially when his intention of including them all is so apparent. By the law of England, the terms real estate, in their strict technical signification, denote “lands and tenements.” The writer of this deed seems to have borrowed the phrase thence; and, indeed, often with us the terms real and personal are used indiscriminately for those of heritable and moveable, which are the more proper technical expressions in Scotland.

The pursuer's claim to the rents of the entailed subjects during James' life, is not better founded. The trust-right was for his benefit as heir of entail, and should not be considered as revoked by the contract of marriage.

The opinion of the Court was, That the entailer's intention to settle the whole of his estate was sufficiently evident; and likewise, that the above mentioned expressions might comprehend both the lands, omitted in the deeds, and also those acquired afterwards.

Some of the Judges, however, doubted, whether these general words were sufficient for a conveyance of land property to be completed by infeftment. With respect to the lands of Norrieston, they farther observed, that as the entailer seemed to have been ignorant of their being omitted in the entail, so it was impossible that, in the subsequent trust-deed, he could supply that deficiency; and therefore, though his design was to contain in those deeds all his land, still quod voluit non fecit.

With regard to the rents of the entailed lands due during the apparency of James, the Court considered, that these, though otherwise vesting in him, fell under the deed of trust, which being calculated for hid benefit, was not to be presumed to have been revoked by the contract of marriage.

The Lords assoilzied the defender.——See Presumption.

Reporter, Lord Stonefield. Act. Wight. Alt. Ilay Campbell. Clerk, Orme. Fol. Dic. v. 3. p. 125. Fac. Col. No 53. p. 84.