Legal Subject: Entail |
Under a strict Scottish entail, made prior to 1848, the tenant in possession had never more than a life estate only, and consequently could not bar the entail. He may now do so with the consent of one or more of those in remainder. If born after 1848, or after the execution of any entail made subsequently, he may bar it without any consent. To make an entail effectual, it must have contained clauses prohibitory against the possessor selling, encumbering, or anew limiting the estate, irritant (avoiding) of any such acts, if he should do them, and resolutive (forfeiting) of his right to the estate in that case. These three sets of clauses constituted the fetters of a strict entail. Defect in any one avoided the entail as regards the particular procedure, whether selling, encumbering, or devising; but now it avoids the entail in all respects.
| Case | Date | Legal Subject | Abstract |
|---|---|---|---|
| Alexander Gordon of Culvenan, and Jean Macculloch, Elder Daughter of John Macculloch, Elder of Barholm v. James Dewar of Vogrie, John Macculloch Elder, and John Macculloch Younger, of Barholm | 2 Aug 1771 | Entail | John Macculloch's estate, which encompassed a considerable land-estate in the stewarty of Kirkcudbright and shire of Wigtown, was subject to a settlement containing strict prohibitive, irritant, and resolutive clauses. This case is a dispute over inheritance claims following Macculloch's death. |
| Dick v. Drysdale | 14 Jan 1812 | Entail | Sir Alexander held Prestonfield and Corstorphine under several strict entails dating to 1720, one of which prevented any heir from setting tacks for more than one lifetime. Sir Alexander's father, Sir William, set a tack in Drysdale that John Dick, as tutor to his nephew, sought to have voided. An Act of Parliament allowed certain types of tacks in contravention of entail clauses, but Dick maintained that the statute did not apply in this case. |
| Johnston v. Home | 13 Jun 1800 | Public Burden, Entail | The deceased defendant Sir John Home sold land to the pursuer, Thomas Johnston. The contract's terms included a notation that the land was free of all public burdens except those explicitly defined in the contract. Johnston sued Sir John Home's heirs, Sir Alexander Stirling and Sir John Stirling, as entails are still on the property. Johnston argued that he should have been been free of them given the contract's terms. |
| Murray v. Earl of Breadalbane | 1767 | Exhibition Ad Deliberandum, Heir-apparent, Entail, Tailzie, Succession | Pursuers Mary and Margaret Murray, who claimed to be heirs apparent to the estate of Shian, brought an action of exhibition ad deliberandum; that is, they sought the production of documents to help them decide whether to take up the succession. The Earl of Breadalbane claimed that he had obtained good title to Shian, blocking the Murrays’ succession. Therefore, he sought to avoid producing additional documents. |
