Nicolson (Arbuthnott’s Curator Bonis) v Arbuthnott: SCS 7 Jun 1878

An entailer, proprietor of the estates of A and B, executed a deed of entail of B, in which he set out that ‘for the more effectually preserving’ the estate of B ‘distinct from the lordship and estate of A, as a permanent property to the second son of my only son J, . . whom failing, by death or otherwise as after mentioned, to his other sons and their heirs-male in their order, subject to the provision after mentioned, ‘ he destined the estate of B to the second son of his only son and the heirs-male of his body, whom failing to each of the other younger sons of the family in their order of seniority, calling each by name, and adjecting in the case of each this condition?’who shall not have succeeded or become next in succession to the lordship of A;’ whom failing ‘to the other heirs-male of the body of the said J who shall not have succeeded or become next in succession to the lordship of A, ‘ . . ‘whom failing to my own nearest heirs-male whomsoever.’ To this last branch of the destination no condition was specially attached, but there followed the usual clauses with reference to the mode of making up titles, and c., in the event of the prohibitive condition coming into operation, and these clauses were applied to the institute and ‘the other heirs and substitutes before named and appointed, ‘ and in another case to him ‘or any of the other heirs of tailzie before specified.’
There was a further provision, applicable to all the heirs of entail, including ‘heirs whomsoever, ‘ with regard to bonds of provision to wives and children, to the effect that ‘if the granter thereof shall succeed to the lordship of A, ‘ they should ‘in that event be absolutely null and void.’
In a competition for special service to the estate of B, between a party who claimed as the eldest son of J’s eldest son, and who was actually in possession of the lordship of A, and that party’s own second son, held (1) that both must claim under the last branch of the above destination as ‘heirs-male whomsoever’ of the entailer, the previous branch having reference to J’s younger sons exclusively; and (2) that upon a construction of the intention of the testator the prohibitive condition did not apply to the last branch of the destination.

[1878] SLR 15 – 596

Land, Trusts

Updated: 24 January 2022; Ref: scu.577403