Robert Hay, Esq. second Son of Alexander Hay of Drummelzier, Esq. v. George Marquis of Tweeddale [1773] UKHL 2_Paton_322

UKHL
Robert Hay, Esq. second Son of Alexander Hay of Drummelzier, Esq. v. George Marquis of Tweeddale
[1773] UKHL 2_Paton_322 · 1773-04-06
Clause of Devolution in a Deed of Entail.Sir Robert Hay was proprietor of the estate of Linplum, and having no issue of his body, but being attached to his family and name, he executed a deed of entail in regard to

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Besides the usual prohibitory, irritant, and resolutive clauses and conditions of using arms, &c. there followed this clause of devolution, upon which the present question arises:—to his said second lawful son, and to his heirs male, and so on, as often as the same case happens, in all time thereafter.”
“That if any of the heirs of entail before mentioned, or their descendants, shall happen to succeed to the estates or titles of Marquis of Tweeddale, Hay of Drummelzier, Duke of Roxburgh, then and in that case, the right of my lands and others before mentioned in the person of such heir of entail, so succeeding to any of the foresaid other estates or titles, shall cease and terminate, and that from the Whitsunday or Martinmas next after he shall have so succeeded; or in his option, next after he shall have a second lawful son attained to the age of fourteen years, during which space I herewith dispense with the said heir of entail his using my surname and coat armorial; and the right of the lands and others foresaid shall fall and devolve

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When Sir Robert Hay died, the Marquis of Tweeddale had then but one son; and, in consequence, the succession to Linplum estate, under the above destination, devolved upon the next heir called in the entail, namely, Lord Charles Hay, the Marquis' immediate younger brother, he being the first substitute called after the younger sons of his brother the Marquis;—Upon Lord Charles' death without issue the succession then devolved on the respondent, Lord George Hay, his younger brother next called in the deed, who, upon the death successively of the Marquis of Tweeddale and his only son without issue, also thereafter succeeded to the titles and estates of Tweeddale. Both estates being thus united in him, the present action was raised by the appellant. Alexander Hay of Drummelzier's second son was at this time dead, without issue, but the appellant, his brother, and heir male, being advised that, by the respondent's succession to the titles and estate of Tweeddale his right to Linplum had terminated, he claimed the same as the next substitute called, and entitled to succeed on that event.The respondent resisted this, on the ground that as his own heirs male had not failed, and as it was more than probable he would have a second son, he was entitled to hold the estate during his life, until he should have a second son arrived at the age of fourteen.June 20, 1771.Feb. 19, 1772.The Lord Ordinary, of this date, found that, under the special proviso in the deed, the respondent had the option to hold the estate of Linplum until he should have a second son entitled to succeed. On representation, the case was reported to the Court; and the Court, of this date, adhered.Against these interlocutors the present appeal was brought to the House of Lords.Pleaded by the Appellant .—From the whole frame and tenor of the deeds in question, it was manifest that it was Sir Robert Hay's fixed and determined purpose to secure his estate of Linplum limited to a particular series of heirs different from the persons who should succeed to any of the other three estates of Tweeddale, Drummelzier, or Roxburgh. This intention is fortified by an entail, containing prohibitory, irritant, and resolutive clauses, to prevent every

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Pleaded for the Respondent .—The second son of the family of Tweeddale was the prœdilecta persona prœdilecta persona , and the intention of the entail was, to give to John Marquis of Tweeddale, or the Marquis of Tweeddale for the time, the enjoyment of Linplum during the non-existence or non-age of his second son. The words used to express this are too plain to admit of doubt, and no evidence of contrary intention will warrant departure from the strict words of an entail. All construction, therefore, with the view to expiscate the intention of the maker is excluded, where the words are clear and express, and where the departure from this is fenced by irritant and resolutive clauses, and the penalty of forfeiture. The Marquis (respondent) has the power of holding “till the term of Whitsunday or Martinmas next after he shall have a second lawful son, attained to the ago

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After hearing counsel, it was

Ordered and adjudged that the appeal be dismissed, and that the interlocutors therein complained of be affirmed.Counsel: For Appellant, J. Montgomery, Al. Wedderburn. For Respondent, Henry Dundas, Al. Forrester.