By deed of entail A, in the event (which occurred) of his decease without heirs of his body, conveyed certain lands to his wife in liferent and to B in fee. The first condition of the entail was that B and the ‘whole heirs of entail and substitutes above written’ should assume a certain name. The fetters of the entail were directed only against ‘the heirs of entail or substitutes above written.’ B, after possessing the estate, died, leaving a deed whereby she conveyed to C certain lands nominatim, and also generally her whole heritable and moveable estate. In several previous deeds, which B granted in security of borrowed money, she styled herself heiress of entail in possession of the said lands, and as such bound by the fetters of the entail. Held-(1) that B had not intended by the deed in question to convey the said entailed lands to C, for the reason that she was not aware that she possessed them as absolute fiar. (2) that the fetters of the entail did not apply to B, the conditional institute, and that she possessed the said lands as absolute fiar.
Lord Chancellor Selborne, Lords Chelmsford and Colonsay
[1873] UKHL 451, 10 SLR 451
Bailii
Scotland
Updated: 20 September 2021; Ref: scu.652913