Steuart Menzies of Culdares, an Infant, and the Hon. Henry Erskine and Others, his Guardians v. Mrs. Elizabeth Mackenzie Beresford (formerly Menzies), and John Claudius Beresford, of the City of Dublin, Esq., her Husband [1811] UKHL 5_Paton_522

UKHL
Steuart Menzies of Culdares, an Infant, and the Hon. Henry Erskine and Others, his Guardians v. Mrs. Elizabeth Mackenzie Beresford (formerly Menzies), and John Claudius Beresford, of the City of Dublin, Esq., her Husband
[1811] UKHL 5_Paton_522 · 1811-07-20
Steuart Menzies of Culdares, an Infant, and the Hon. Henry Erskine and Others, his Guardians, Appellants v. Mrs. Elizabeth Mackenzie Beresford (formerly Menzies ), and John Claudius Beresford , of the City of Dublin, Esq., her Husband, RespondentsHouse of Lords, 20th July 1811 .

Subject_ Entail — Fetters — Institute, or Heir of Tailzie. —

Here the question was, whether the party first called in the entail was an institute or an heir of tailzie? In the first part of the deed (nomination of heirs of tailzie) he was called expressly as an heir of tailzie; but in the latter part of the deed of disposition he was called as an institute or fiar. Held him not subject to the fetters of the entail. Affirmed in the House of Lords.The particulars of this case are reported, ante vol. iv. p. 242.The case was remitted from the House of Lords to the Court of Session, to review the interlocutors which the Court had pronounced, and which were appealed from.Jan. 18, 1803.On resuming consideration under this remit, the Court of Session ordered mutual memorials on the whole question.

Page: 523 ↓

“The Lords having, in obedience to the remit from the House of Peers of the 30th day of June 1801, reviewed the interlocutors of the 24th day of June and 6th December 1785, heard counsel for the parties in presence thereon, and advised the mutual memorials and other writings, and proceedings in the cause; they find that James Menzies of Culdares, although nominated as heir of tailzie by the first part of the deed 1697, being made disponee or institute by the latter part thereof, was not comprehended in the prohibitory, irritant, and resolutive clauses imposed on the heirs of tailzie of the grantor, and that this is the case as to the whole estate comprised in the deed 1697, including such part thereof as was comprised in the charter 1675, and therefore adhere to the foresaid interlocutors of the 24th day of June and 6th day of December 1785.”
The appellants conceiving themselves aggrieved by the judgment, brought the present appeal, not only against the former interlocutors, but also against the one above quoted.Pleaded for the Appellants .—It is perfectly clear, from the general tenor and conception of the deed 1697, as well as from various passages in it, that it was the intention of the maker to subject James Menzies, the person who was first to take, to the observance of the conditions prescribed, and to lay him under the restrictions specified, as much as any other person or substitute who was to take after him, and that the maker did conceive that he had so subjected James Menzies, as well as the rest, when he imposed the conditions and restrictions upon the heirs of tailzie generally. Thus he begins by nominating the said James Menzies, and the heirs male of his body , whom failing, the other persons favoured to be his (the granter's) heirs of tailzie and provision . Then, for farther security of the heirs so nominated, he conveys to the said James Menzies and the substitutes, the different estates. He next appoints a moiety of the rents to be paid to Captain Archibald Menzies during his life, and the other moiety, after payment of his debts, to the heirs of tailzie above mentioned , to whom the fee is hereby appointed to belong, in their order, which must either be applied to James Menzies, or it must he held that the granter meant to give James nothing in fee of the estate. He then reserves power to burden the heirs of tailzie above mentioned, not meaning surely to exclude James Menzies,

Page: 524 ↓

Pleaded for the Respondents .—1. James Menzies, the

Page: 525 ↓

After hearing counsel, it was

Ordered and adjudged that the interlocutors be, and the same are hereby affirmed.Counsel: For the Appellants, Wm. Adam, John Clerk. For the Respondents, Sir Sam. Romilly, Jas. Abercromby.Note .—Unreported in the Court of Session.