Scottish Court of Session Decisions

By lease dated 12th July and 17th September 1845, entered into between the Right Honourable Robert Montgomerie Hamilton, Lord Belhaven and Stenton, heritable proprietor of the subjects thereby leased, on the one part, and Alexander Prentice, iron loader at Newmains Iron Works, and residing at Beltonfoot of Wishaw, on the other part, the said Lord Belhaven and Stenton “Let, and in tack and assedation set, to the said Alexander Prentice and his heirs as after mentioned, but always with and under the burden of the liferent of Cecilia Haddow or Prentice, his mother, to the extent of one-third of the subjects after described, during all the days of her natural life, and failing both the said Cecilia Haddow and the said Alexander Prentice, then the whole subjects to and in liferent only, to the present wife of the said Alexander Prentice during the days and years she may continue his widow allenarly, and after the death of the said spouses, or re-marriage of the present wife of said Alexander Prentice, then to the children of their marriage, equally between them, share and share alike in fee.” The endurance of the lease was for the whole time and space of 950 years from and after the term of Martinmas 1844, which was declared to have been the term of entry to the possession of the subjects let, notwithstanding the date of the lease. The said Alexander Prentice by said lease bound and obliged himself, “and his heirs and successors herein,” to content and pay to the said Lord Belhaven and Stenton £1, 1s. of yearly rent or tack-duty. The lease was not recorded under the Registration of Leases (Scotland) Act 1857, but the lessee entered into possession of the subjects, and possessed them in virtue of the lease during his lifetime.

Alexander Prentice, the lessee, died on 5th November 1877 intestate. He was survived

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by his widow, Mrs Janet Shaw or Prentice, by his daughter Mrs Cecilia Prentice or Marquis, and by a son William Prentice, joiner, Wishaw, who had a son Alexander Prentice secundus. Three children of the lessee had predeceased him. Of these two died in infancy, and the third Mrs Margaret Prentice or Macdonald, wife of John Macdonald, mason, Wishaw, died intestate on 24th July 1857. She was survived by two daughters, one of whom died when about eight years of age, and the other was Mrs Jessie Macdonald or Halbert, who still survived. William Prentice, the son of the lessee, and the father of Alexander Prentice secundus, died on 3rd June 1894, survived by Alexander Prentice secundus who was his eldest son and heir-at-law. The said Mrs Janet Shaw or Prentice, the widow of the lessee, did not marry again. She died on 17th July 1895.

Questions having arisen as to the rights of succession to the said lease, the present special case was presented to the Court. The parties to the case were (1) Mrs Cecilia Prentice or Marquis, (2) Alexander Prentice secundus, (3) Mrs Jessie Macdonald or Halbert.

The first party, as the only child of the marriage of Alexander Prentice (the lessee) and Mrs Janet Shaw or Prentice, who was alive at the date of the death of the said Mrs Janet Shaw or Prentice (the lessee's widow), claimed that she alone was entitled to succeed to the said lease, in virtue of the destination contained in the lease. Alternatively, she claimed that she and the second party, Alexander Prentice secundus, were entitled to succeed to the said lease jointly between them, in respect that the right of succession to the said lease fell to be determined as at the date of the death of Alexander Prentice, the original lessee, and that at that date the only children of the marriage alive were the first party and William Prentice, the father of Alexander Prentice secundus (the second party).

The second party, Alexander Prentice, secundus as heir-at-law of the said William Prentice, claimed to be entitled to succeed to the said lease jointly with the first party, or to the extent of one-half on the ground already explained.

The third party, Mrs Jessie Macdonald or Halbert, the only surviving child of Mrs Margaret Prentice or Macdonald (who was one of the three children of Alexander Prentice, the lessee, alive at the date of the granting of lease), maintained that under the destination in the lease she was entitled to succeed to the said lease to the extent of one-third along with the first and second parties.”

The opinion of the Court was desired upon the following questions of law:—“1. (a) Is the first party, the said Mrs Cecilia Prentice or Marquis, entitled to succeed to the said lease to the exclusion of the second and third parties. ( b) Are the first and second parties entitled to succeed to the said lease jointly, or to the extent of a-half each. 2. Is the third party, the said Mrs Jessie Macdonald or Halbert, entitled to succeed to the said lease to the extent of one-third, or jointly with the first and second parties.

Argued for the third party—(1) The children who were in life at the date when the lease was granted took a vested right in it at that date, and their right could not have been defeated— Macallister v. Macallister, February 22, 1859, 21 D. 560. Possession followed on the lease which in the case of a lease was equivalent to recording. But (2) apart from this the third party's claim was good in virtue of the conditio si sine liberis. It had been held that it applied in the case of legacies— Bryce's Trustee, March 2, 1878, 5 R. 722, and to destinations in bonds of provision inserted at the instance of grantees, for the benefit of their children or of those to whom they stood in loco parentis—M'Laren's Wills and Succession, vol. i. p. 719. The destination here was in the same position.

Argued for the first party—This was simply a contract between landlord and tenant. (1) The child who survived both spouses was entitled to the lease. The right only vested at the date of the death of the longest liver of the spouses— Forrester v. Milligan, July 1, 1830, 8 S. 992; Macallister v. Macallister, cit. No indefeasible right vested at the date of the lease. The mere length of time for which the lease was granted did not affect the question. (2) In any event there was no vesting till the death of Alexander Prentice, the lessee, for the children of the marriage were substitutes. (3) The third party could only prevail if the conditio si sine liberis applied and it did not, for it only took effect in the case of a general family settlement of a testator's whole property— Crichton v. Howat, December 18, 1890, 18 R. 260. But, moreover, the children here were substitutes and the conditio was not implied in favour of the children of substitutes— Carter's Trustees v. Carter, January 29, 1892, 19 R. 408. The case of Ranken, June 17, 1870, 8 Macph. 878, in which the conditio being inapplicable the term “children” was held to include “grandchildren,” stood alone.

Argued for the second party—(1) They adopted the argument for the first party on the question as to the applicability of the conditio. (2) The fee was in the lessee, and his wife had only a liferent. Therefore when he died the fee had to be filled. The right to the lease therefore vested in the children who were alive at his death.

At advising—