Robert George Stee - Appellant v. Robert Steel and other - Respondents [1817] UKHL 5_Dow_72

UKHL
Robert George Stee - Appellant v. Robert Steel and other - Respondents
[1817] UKHL 5_Dow_72
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816–17.57 Geo . III.SCOTLAND.APPEAL FROM THE COURT OF SESSION.

No. 4

Robert George Steel — Appellant v. Robert Steel and others— Respondents

June 18 , 24 , 1817 .decision of the Court of Session, that the institute was not included in the word members , as used in this particular entail; the word appearing to be used in the same sense as the word heirs , and the case being therefore within the principle of decision in the Duntreath case.BALDASTARD ENTAIL.—THE INSTITUTE NOT BOUND BY RESTRICTIONS UPON MEMBERS OF TAILZIE, AS TUB WORD MEMBERS IS USED IN THIS ENTAIL.Entail, with restrictions upon the heirs and members of tailzie. Held by the House of Lords, affirming a

Page: 73 ↓

Entail of Baldastard; 6th March, 1790.By a deed of entail, executed 6th March, 1790, George Steel, of Baldastard, gave, granted, and disposed, with and under the conditions, provisions, and declarations, prohibitive, irritant, and resolutive clauses therein inserted, his estate of Baldastard to and in favour of himself in liferent, for his liferent use only, and to George Steel his nephew, and Harriet Applin his spouse, in conjunct fee and liferent, and the, heirs whatsoever of the body of the said George Steel in fee; whom failing, to his own nearest heirs and assignees whatsoever; whereby George Steel became disponee or institute under the deed. The procuratory of resignation was granted in terms of the above dispositive clause, but declared to be also “under the conditions, prohibitory irritant and resolutive clauses, powers, and faculties after expressed, and appointed to be inserted in the charters, saisines, &c. of the foresaid lands in all time coming, and to be observed by all my heirs and substitutes above named .” The deed then, after providing, primo , that, in case the estate should devolve on heirs female, the eldest daughter should succeed without division, proceeded with the prohibitory, irritant, and resolutive clauses as follows:Prohibition against selling.Resolutive clauses.
“ Secundo , That every person and heir, whether male or female, who shall succeed to the foresaid

Page: 74 ↓

Page: 75 ↓

Page: 76 ↓

Entail registered March 11, 1790.Institute executes a trustdeed to sell the estate.Sale in trust for Robert Steel, one of the trustees.Subsequent sales.The entail was registered on the 11th March, 1790, and the entailer died on 24th June, 1790. On his death, George Steel and Harriet Applin the conjunct fiars made up titles to the estate; and on

Page: 77 ↓

Action to set aside the sales.Robert George Steel, the son of the institute, after all these sales had taken place, raised an action of declarator of irritancy and reduction against the eldest son of the original purchaser, and against the subsequent purchasers, and surviving trustees, concluding to have it found and declared that the institute and his wife, by executing the trust-deed, had

Page: 78 ↓

Interlocutors, July 6, Nov. 12 Dec. 3, 1813; Jan. 14, 1814.The question was, whether the word members , as used in the restrictive clauses of this entail, did or did not comprehend the institute.Vide the interlocutor at length in the Lord Chancellor's speech, post.For the Appellant, it was argued that in the Dun-r treath case the House of Lords had determined that the institute or disponee was not included in the term heir , which technically implied in law the person who takes by service, as distinguished from the institute or fiar who takes by the dispositive part of the deed. But here there was an essential distinction, because the prohibitory, irritant, and resolutive clauses were laid, not merely on the heirs, but also on the members of tailzie; and in order to bring this case within the principle of the Bun treath case, it would be necessary to show that the term heir and member were in law co-extensive and synonymous. The contrary however was clear from the language of conveyancers and the best institutional writers, by whom the term member was used as including, or applying to, the institute. That it was so used by conveyancers appeared from the entails of Castlehill, recorded 29th June, 1711; Dumbarnie, 2d

Page: 79 ↓

Page: 80 ↓

Page: 81 ↓

Ross (case of) 1742. Leslie, (case of) 1752. Erskine v. Balfour , Hay , Feb. 14, 1768. Duntreath case, Dec. 24, 1769.For the Respondents it was argued that the estate was sold twenty-five years ago by the institute without objection, under the opinion of the most eminent counsel. The principle was established in three cases before the Duntreath case, and in that case the Court of Session seemed to recede; but the House of Lords set it up again, and that was followed by seven cases decided on the same principle, which was now inflexible. The question was, not whether the entailer intended to include the institute, but whether he had expressly included him. The first point they insisted upon was that the word member strictly included the institute. Though that were made out, it would not be sufficient, for the word was not used in the irritant clause, and as this was a question between heirs, the strictest construction must be applied. Not one of the authorities mentioned, except the marginal note or title to the case of Erskine v. Hay , showed that the word members meant any thing further than the heirs of the entail. For the question still remained whether the institute was a member of entail. The entails referred to by them made the institute a member by including him expressly by name in the entail, or the same question might have arisen upon them as on this entail. Mackenzie spoke of the institute as the first member of entail, but that meant only that

Page: 82 ↓

Mr. Leach (in reply). The Duntreath case was clear law, but the judgment of the House of Lords there was that the institute was not bound under the word heir. (Lord Eldon, C. The difficulty with me is how, if the institute was not comprised under the word heir , he could be fettered at all.) True, but it was there held that heir meant a person taking

Page: 83 ↓

Mr. Leach and Mr. Brougham for the Appellants; Sir S. Romilly and Mr. Adam for the Respondent.judgment.June 27, 1817.Trustee to sell.Lord Eldon (C.) As to the particular circumstance here that the purchase was made in trust for one of the trustees to sell, that is not made a ground of proceeding in this cause, and I give no opinion upon the case in that view of it: and then the question depends solely on the entail.Duntreath case.The, Duntreath case has settled the point that entails are strictissimi juris , and that, whatever the intention of an entailer may be, fetters are not to be imposed by implication : and it is to be lamented that, after that point had been so settled in the Duntreath and other cases, a deed of entail, framed in 1790, should still have been made so as to leave

Page: 84 ↓

The ground of decision in the Duntreath case not now to be shaken.With respect to that case of Duntreath I have only two observations to make: 1st, that I was not a little startled at that decision; and, 2dly, that the decision having been once made, it must not now be shaken. But it is a very remarkable circumstance that in the Entail Act, 1685, there is no word under which the institute can be fettered at all, unless under the words heirs of tailzie; and yet it has been decided that if you fetter the heir only, in the prohibitory, irritant, and resolutive clauses; if in any of these clauses the word heir only is mentioned, the institute is not included in the fetters of the entail: and the question now is, whether the institute is fettered as a member of tailzie.Not to be got rid of by nice, thin, and shadowy distinctions.Now after it has been so often decided that the institute or disponee cannot be fettered by implication, that principle having been once solemnly settled, it ought not now to be got rid of by nice, thin, and shadowy distinctions. Having regard then to that principle, and to what, as Lord Kenyon expressed it, is to be found within the four corners, of the instrument; we are to consider whether, if the entailer intended to fetter the institute, he has clearly and unequivocally expressed that intention.

The interlocutor of the Lord Ordinary was this:—

“The Lord Ordinary having considered the memorial for Robert George Steel, pursuer, with the counter-memorial for Robert Steel and other de fenders, and whole particulars, finds, 1st, that,

Page: 85 ↓

There your Lordships observe, the words are— “ all my heirs and substitutes ,” and though I do not say that an institute may not be included in the word members of tailzie; yet it must be clear that the entailer so intended it; and there he uses the words “ heirs and substitutes ,” which has a tendency to show that he had in view, in this instrument, his heirs and substitutes only. “3dly, finds that, by the fifth clause of the entail, it is declared, that it shall not be in the power of all or, any of the said heirs, or members of tailzie, or other successors, to sell, dispone, wadset, &c. and the irritant clause, following this prohibitory clause, is directed against all debts, acts, and deeds of all or any of the said heirs of tailzie and substitution, or their heirs.” Now it was very ably contended at the bar, and in a manner which might carry conviction to my mind, if I had not been obliged to guard it by the rules of law, and to give

Page: 86 ↓

“and therefore, that in consequtnce of the principles acknowledged in the cases of Duntreath and Wellwood, and other decisions of the Court, the prohibition against selling or executing other deeds, contained in. the foresaid entail, cannot be held as applicable to the said George Steel as institute or disponee, &c.”

Page: 87 ↓

The word members (of entail), as used in this deed, does not include the institute.Agreeing in these findings of the Lord Ordinary and the Court, I think the result under this instrument is such as they have found it to be; and it appears to me that other passages in this instrument lead to the same result. I propose therefore to find that, under the particular circumstances mentioned in the Lord Ordinary's interlocutor, and adverting also to the whole of the circumstances as they appear in this instrument (I am anxious to have these words introduced), the word members , as used in this deed, does not include the institute—and that the judgment should be affirmed.Judgment affirmed .