Scottish Court of Session Decisions

The Entail Amendment Act 1848 (11 and 12 Vict. c. 36), section 28, enacts—“For the purposes of this Act the date at which the Act of Parliament, deed, or writing, placing such money or other property under trust, or directing such land to be entailed, first came into operation, shall be held to be the date at which the land should have been entailed in terms of the trust, and shall also be held to be the date of any entail to be made hereafter in execution of the trust, whatever be the actual date of such entail.”

John Broun Broun Morison of Murie, Errol, in the county of Perth, heir of entail in possession of the estate of Murie, presented a petition for authority to disentail the estate. The petitioner succeeded to the entailed estates of West Errol, White-riggs, and Cupargrange in 1866 in virtue of deeds of entail executed in 1856 and 1861 by the trustees of David Morison, who died on 22nd October 1842, leaving a trust-disposition and settlement dated 11th Decemher 1841, and registered in the Books of Council and Session 28th October 1842, whereby he directed his trustees to allow his estate to accumulate for ten years, and then to purchase and settle lands in Scotland by deed of strict entail on a certain series of heirs. In 1873 the trustees obtained a private Act called Morison's Estate Act 1873 (36 and 37 Vict., cap. i), by virtue of which they sold the estate of Cupargrange, and purchased, and in 1875 executed in terms of the Act a deed of entail of the estate of Murie on the same series of heirs and subject to the same restrictions as the estate of Cupargrange.

The private Act contained, inter alia, the following clauses:—Section 20—“The said John Broun Broun Morison and the heirs of entail entitled to succeed to him in the said entailed estate of West Errol, and the said portion of the estate of Murie hereby directed to be entailed, shall, notwithstanding anything in this Act contained, be entitled to avail themselves of all the benefits and privileges conferred upon heirs of entail by any public Act now in force, and in particular by the Acts eleventh and twelfth Victoria, chapter thirty-six, sixteenth and seventeenth Victoria, chapter ninety-four, twenty-third and twenty-fourth Victoria, chapter ninety-five, and thirty-first and thirty—second Victoria, chapter eighty-four.”

The petitioner stated that he was born on 22nd January 1840, and that the only heir of entail whose consent was required to the application was Guy Edward Broun Morison, his eldest son, the next heir in succession to the estate of Murie under the deed of entail, who was born on 4th March 1867, and was willing to consent to the application. The petitioner further stated that the two heirs next entitled to succeed to the estate after his son were the latter's children Guy Edward Broun Morison and Rosemary de Annand Broun Morison, who were born respectively on 26th August 1908 and 13th October 1910, and were thus in pupillarity at the date of the petition.

The petition was served on Guy Edward Broun Morison and his two pupil children, and Mr M. Millar Craig, advocate, was appointed curator ad litem to the pupils.

The curator ad litem lodged the following minute:—“The curator ad litem having seen the process, submits that the petition is incompetent, in respect that in virtue of the Entail Acts, and particularly

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the Act 11 and 12 Vict. cap. 86, sections 1, 2, 3, and 28, and the Act 45 and 46 Vict. cap. 53, section 3, the date of the entail under which the petitioner is heir of entail in possession of the estate of Murie, is the date at which the Act 36 and 37 Vict. cap. i, commonly called Morison's Estate Act 1873, came into operation, viz., 21st July 1873, and that therefore the petitioner is not entitled to acquire the said estate in fee-simple without the consents of the said Eve Muriel de Annand Broun Morison and Rosemary de Annand Broun Morison, and the curator ad litem craves to be allowed to be heard by counsel at the bar if necessary.” .

On 3rd April 1912 the Lord Ordinary on the Bills pronounced the following interlocutor:—“Finds that the Morison Estate Act 1873 must be construed as enacting that the heirs of entail in possession of the estate of Murie, by virtue of the entail executed under authority of the Act, shall have the same benefits and privileges under the Public Entail Acts, 1848–1868, available to them, with reference to the estate of West Errol, which was entailed pursuant to the trust deed of 1842, and which remained so entailed: Therefore repels the objections stated by the curator ad litem in said minute, and decerns.”

Opinion.—“I have come to the conclusion that the petition to disentail the estate of Murie is competent, but I dissent from the assumption of fact made in the petition to the effect that the entail was executed under the authority of a trust deed which came into operation in the year 1842. The very opposite is the truth. The entail was executed under the authority of a private Act of Parliament which came into force in the year 1873, and which rode rough shod over the trust deed of 1842 and what had lawfully followed thereon. It is, however, within the power of Parliament to enact that the ‘thing which is not’ shall be deemed to exist, and vice versa. I construe section 20 of the private Act not as idle verbiage, but as enacting that the heirs of entail in possession of the estate of Murie, by virtue of the entail to be executed under its authority, should have the same ‘benefits and privileges’ under the Public Entail Acts, 1848–1868, available to them with reference to that estate as were available to them with reference to the estate of West Errol, which had been entailed pursuant to the trust deed of 1842, and which remained so entailed.

In 1873 heirs of entail in possession, by virtue of new entails, enjoyed only a fraction of the ‘benefits and privileges’ which the public Acts conferred upon heirs in possession by virtue of old entails. Further, it is implied in the preamble and clauses of the private Act that the estates of West Errol and Murie were intended to form ‘one compact estate,’ with its mansion-house on Murie, and that they were intended to be held and enjoyed as one estate.

Three questions therefore had to be determined by the private Act, viz.—(1) Ought the heirs of entail to have different and larger powers as regards West Errol in comparison with their powers as regards Murie? or (2) ought Murie to be considered as held under the original entail? or (3) ought West Errol to be considered as held under the new entail which for the first time provided a mansion-house and a compact estate? I interpret section 20 as answering the second question in the affirmative and as deciding in favour of unity and liberty. I accordingly repel the objection stated for the curator ad litem in his minute, but as the objection was one which it was his duty to state, I find him entitled to his expenses.

Counsel for the curator bonis cited the case of Buchanan, (1883) 10 R. 809. The earlier case of Buchanan, (1864) 2 Macph. 1197, seems to me to be more in point.”

The curator ad litem reclaimed, and argued—The effect of section 28 of the Entail Amendment Act 1848 (11 and 12 Vict., cap. 36) was that the date of the entail should be held to be the date of the Act directing the entail, and section 20 of Morison's Estate Act 1873 (36 and 37 Vict., cap. i) did not have the effect of taking the entail of Murie out of this rule. This section of the private Act merely meant that the entail was to be treated as falling under the public Entail Acts though executed on the authority of a private Act. The following authorities were referred to— Buchanan, Petitioner, June 11, 1864, 2 Macph. 1197; Buchanan v. Jameson, March 16, 1883, 10 R. 809, 20 S.L.R. 534; Duke of Athole, Petitioner, January 12, 1866, 1 S.L.R. 102.

Argued for the respondent—The effect of the reclaimer's argument was to delete section 20 from the private Act altogether. Its only meaning was that the heirs in possession of Murie were to be put in the same position as regards the public Entail Acts as they occupied in respect of the West Errol estate, which was an old entail.

At advising—