I pass now to section 15 of the Succession Duty Act 1853. It provides in its first two paragraphs for the case of the alienation of any reversionary property expectant on death, and declares that the alienee shall be chargeable with duty in respect thereof as a succession, at the same time and at the same rate as the person originally entitled would have been chargeable if no such alienation had been made. I do not think that these provisions have any bearing on the case before me. But the
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Now, even if I had nothing to consider except the propulsion of the entailed estate in 1872 by the late Earl of Buchan to the defender, I should have doubted whether the devolution imported a surrender or extinction of a prior interest in the sense of the Act. If the estates of Strathbrock, &c. had been held by the late Earl on a destination, that is, a tailzie without fetters, under which his son, the defender, would have succeeded as heir of provision, I conceive, as I have already said, that it would have been open to the late Earl to propel the estate to his son, that is, to dispone it to his son, without leaving his son liable to the same claim for succession duty as he would have been had he taken under the destination on his father's death. If so, then as the heir of entail in possession is fee-simple proprietor except so far as fettered, and the fetters do not prevent propulsion or disposition to the next heir, being heir-apparent, I cannot see that liability for duty survives any more on propulsion in the case of a strict entail than of an unfettered destination. I think, in fact, that the term ‘prior interests,’ the surrender or extinction of which is contemplated, does not appropriately describe the right of an heir of entail in possession, but covers only such interests as are a charge on the fee. I assume that the propulsion is bona fide and absolute, and that there is no question of donatio mortis causa.
Second .—But I do not rest my opinion entirely on this view, for I think that the latter part of the clause affords strong ground for the same conclusion.
Assuming that the propulsion is an acceleration in the sense of the provision, still the duty is only to be payable ‘at the same time and in the same manner as such duty would have been payable if no such acceleration had taken place.’ This involves, I think, not that duty might have been payable if nothing but the acceleration had taken place, but must have been payable whatever else took place.
Now, in 1872 Lord Cardross was heir-apparent under an old entail. In 1875 he attained the age of twenty-five, necessary at that date to consent to disentail. He was then capable of giving his consent, even without consideration to his father's disentailing, and acquiring in fee-simple, or burdening or disposing of the estate. If no such acceleration had taken place and the estate had remained under the entail, there was nothing to prevent at any moment this course being taken, and the duty, in whole or in part, would have disappeared. There was, therefore, no must during the late Earl's life about the payability of the duty at the late Earl's death. The above course was not taken by reason of the fact that Lord Cardross, though of age, was not yet twenty-five in 1872. But the real and whole transaction was this—The late Earl agreed to execute in favour of the defender a deed of propulsion of Strathbrock, a conveyance of Ammondell, and an assignation of certain other rights and interests, including any reversion of his estates under trust and in sequestration. The late Earl and the defender bound themselves to take the earliest possible steps to disentail Strathbrock, and to that end the late Earl bound himself to execute and deliver, unico contextu with the deed of propulsion, an irrevocable mandate to the defender's nominee, empowering him to do all acts required of the late Earl to carry out the disentail and vest the estates in fee-simple in the defender. Simultaneously with the deed of propulsion and the granting of such irrevocable mandate by his father, the defender undertook to borrow on the estates or otherwise £46,000 for payment of the late Earl's debts, and he undertook to pay certain annuities, a comparatively small part only of which were determinable on the death of the late Earl. These considerations were not considerations merely for the propulsion, but in a greater degree, if not entirely, for the disentail and the vesting of the estates in the defender in fee-simple. At the earliest moment possible the estates, which had been propelled to the defender, were disentailed and acquired by him in fee-simple.
I cannot separate up the transaction as the Crown would have me do, and say that the defender is caught in a net woven of the form of conveyancing rendered necessary by his being under twenty-five when this family arrangement was entered into, which he would have escaped if he had been twenty-five. Had the defender been twenty-five in 1872, the late Earl and he might have proceeded straight to disentail, and to transfer the estates reduced to fee-simple from the late Earl to the defender, after putting on them the burdens necessary to pay the late Earl's debts and the other charges agreed upon. There would have been in the terms of this necessarily complicated family agreement the quid pro quo on both sides involved in a disentail, and all succession by the defender to his late father would have been ended. What was done in a slightly different form, by reason of the defender being only twenty-two years of age and not twenty-five, in 1872, produced exactly the same result. There was the same potentiality in the situation after the deed of propulsion was executed as there was before it was thought of. That potentiality has resulted in accomplished fact; and it is, in my opinion, impossible now to say that any ‘duty would have been payable’ if no such propulsion had taken place.
Accordingly, on both grounds, I do not think that the propulsion of an entailed fee in Scotland is the surrender or extinction of a prior interest in the sense of the statute. These words cover, and I think are intended alone to cover, not a fee, though it may be a fettered fee, but a charge upon the fee, as the interest of the tenant for life is a charge on the estate of a tenant in tail in England.
I was much pressed by counsel for the Crown with the decision of the House of Lords in Duke of Northumberland's case, (1905), A.C. 406. Did I think the decision in that case in point I should be bound by it, but I do not think that it is in
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I shall therefore assoilzie the defender with expenses.”
The pursuer reclaimed, and argued—The deed of propulsion only brought the beneficial possession of the estate to an heir already having under the entail a right defeasible only by his death. Its effect was just what the death of the granter would have — Viscount Dupplin v. Hay , November 15, 1871, 10 Macph. 89, Lord Kinloch at p. 93, 9 S.L.R. 74. It could not be said that the propulsion here was really a disentailing and re-entailing, for when it was granted the late Lord Buchan could not have disentailed, his son the defender not being of consenting age — Viscount Fincastle v. Earl of Dunmore , January 14, 1876, 3 R. 345, 13 S.L.R. 410. The Lord Ordinary, therefore, was mistaken in holding that the estate passed to the defender by the propulsion. It was merely an anticipation of his ordinary succession under the entail— Halkett Craigie v. Halkett Craigie , December 4, 1817, F.C. The right to succeed existing previously under the entail, and passing by devolution of law, a succession was established within the meaning of the Act which no manipulation of the parties could get rid of— Duke of Northumberland v. Attorney-General , [1905] AC 406 , Lord Halsbury at p. 409. There had been an acceleration by extinction of a prior interest, and section 15 applied— ex parte Sitwell , L.R., 21 Q.B.D. 466, Manisty (J.) at p. 470. The Lord Ordinary was wrong in construing the expression “prior interests” in that section as synonymous with interests which were a charge on the fee. The words “charge, estate, or interest,” were used together in section 20, showing them to be different, and the expression “prior interest” covered a propulsion. The defender had succeeded his father in the entailed estates by devolution of law, and was liable in duty under section 2, and the succession having been accelerated by the extinction of his father's prior interest, that duty was payable in terms of section 15, viz., as at the death of the late Lord Buchan. It was to be noted that section 15 was in fact a charging section — Baron Wolverton v. Attorney-General , [1898] AC 535 , Lord Halsbury (L.C.) at p. 544. This case was distinguished from Attorney-General v. Earl of Selborne , [1902] 1 KB 388 ; since there a new line of succession was introduced; here the regular succession under the entail was preserved. The Lord Ordinary's interlocutor should be recalled.
Argued for the defender and respondent — The succession for which duty was claimed was said to have arisen by devolution of law under the Succession Duty Act 1853. Under that statute there was a succession in two cases only—(1) When the right under which beneficial interest arose upon the occurrence of a death was conferred by disposition, or (2) When a devolution by law took place upon death. In the former case the duty attached whenever the disposition took effect, under section 2, although by section 15, which was ancillary to section 2 and regulated the time of payment, duty could not be exacted until the death of the liferenter or other person to whose interest the succession was postponed. When on the other hand the succession was by devolution of law the duty did not attach until that devolution took place, i.e. , until the death of the person formerly entitled to the beneficial interest. Here the claim must be on the ground of succession by devolution of law, the defender being called under the destination in the entail to the heirs of the body of Katherine Stewart. Had he succeeded his father under that destination on his father's death there would have been a succession by devolution of law— Earl of Zetland v. Lord Advocate , February 12, 1878, 5 R. (H. of L.) 51, 15 S.L.R. 373. But there had been so such succession by devolution, because of the propulsion and because of the disentail. Devolution meant a passing from a person dead to a person living—Hanson on Death Duties, 5th ed. 492. The late Lord Buchan had, however, propelled his fee in 1872, more than 26 years before death, and he had thereby absolutely divested himself and vested the full fee in the defender, subject only to the feiters of the entail— Halket Craigie v. Halket Craigie , December 4, 1817, F.C. It was conceded that no duty would have been exigible had Lord Buchan been a fee-simple owner and conveyed to the defender inter vivos , and it made no difference that the estate was entailed— Baron Wolverton v. Attorney-General , ut supra , Lord Halsbury (L.C.) at 542. The expectancy in the case of entailed lands as well as unentailed was merely a spes successionis . In England it had been held competent for the parties to defeat the operation of the statute in cases similar to this— Attorney-General v. Earl of Selborne , ut supra , Collins (M.R.) at 396, Stirling (J.) at 398. This case was not within section 2 on a fair construction of it. Nor was the case within section 15, which was not a taxing section, but merely declaratory, and regulated the amount and time of payment of duty imposed by section 2— Duke of Northumberland v. Attorney — General , ut supra , Lord Macnaghten at p. 413. Here there was no duty payable in 1872, since the requisite relation of predecessor and successor was lacking, and in 1898 nothing passed by way of succession. Therefore the statute did not apply. Duke of North-umberland v. Attorney — General merely decided that if a liferenter and fiar in England combined to sell to a third party, the succession duty imposed inchoately by section 2 was a first charge on the property sold under sections 15 and 42. The case of ex parte Sitwell was not in point here, since
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At advising—
Lord President — [ After narrative of facts quoted supra ]—The real and only question is as to the entailed estates. Now the Lord Ordinary has decided that a duty is not payable, and his judgment, abbreviated, consists of two propositions. Had the old entail subsisted, then, on Lord Buchan's death, the present Lord Buchan, whom for the sake of clearness I shall hereafter call Lord Cardross, would have made up his title to his father as heir of tailzie and provision, and would have paid succession-duty, his father being his predecessor, because, as held by the House of Lords in the cases of Saltoun (Lord Saltoun v. The Advocate-General , 1860, 3 Macq 659 ) and Zetland (Earl of Zetland v. Lord Advocate , February 12, 1878, 5 R. (H.L.) 51) the estate would have passed by devolution of law. But in the actual circumstances when that event happened the old entail was gone, and Lord Cardross did not need to make up any title under it, because he was already holding under the deed of propulsion, which had operated as a disposition inter vivos twenty-six years before, followed by a disentailing deed three years afterwards. No succession-duty was therefore due under section 2 of the Succession Duty Act 1853 (16 and 17 Vict. cap. 51). That is the first proposition. The second is that so far as section 15 is concerned it does not alter the matter. The provision of section 15 in question is as follows:—“And where the title to any succession shall be accelerated … quotes supra … if no such acceleration had taken place.” His Lordship holds that the propulsion was not a surrender or extinction of prior interests. It is obvious that the soundness of these views really depends on what is the true nature of a deed of propulsion, but before I discuss that I wish to make a few general observations.
It has been pointed out many times by the highest tribunal that the Succession Act is drawn in untechnical language, and that it must consequently be applied to the differing technical systems of the settlement of land by title in England and Scotland, so as to preserve harmony in the practical working of the Act in the two kingdoms. A masterly and authoritative exposition of the similarities and differences of the methods of settling land by title in the two kingdoms will be found in the judgments of Lord Selborne and Lord Blackburn in the case of the Earl of Zetland , 5 R. (H.L.) 51, which are worthy of the most careful perusal. (Here I think it not immaterial to point out a curious slip—I will advert to the materiality of it after-wards—into which the Lord Ordinary has fallen, where he quotes a passage of Lord Selborne's opinion in Lord Zetland's case, at page 58 of 5 R., as a description of the estate of a Scottish heir of entail taking from a previous holder, whereas what his Lordship is giving is really the description of the estate of an English tenant in tail, who takes from a previous tenant in tail, who either was unable to bar owing to some special peculiarity, or who being able did not do so.) It follows from the general proposition above stated that English authorities, though in one sense not directly in point, are at the same time of use and weight. And though I always feel that any lawyer in examining authorities who deal with a system of real rights unfamiliar to him is handling periculosœ plenum opus alece , yet I feel myself constrained to do so in a subject like this. I say so because I think the leading case undoubtedly on this branch of the law is the case of the Duke of Northumberland , [1905], A.C. 406. In that case the sixth Duke of Northumberland being tenant for life, and his eldest son, afterwards seventh Duke, tenant in tail, executed together a disentailing deed, and conveyed a piece of land to Lord James Murray. Lord James died, and was succeeded by his daughter Miss Caroline Murray, who paid succession-duty as succeeding to her father. Thereafter the sixth Duke died, and the Crown claimed and obtained a succession-duty from Miss Caroline Murray, becoming due on the death of the sixth Duke, and calculated as an annuity on Miss Murray's life from that time. The actual point in dispute, which was the matter of decision, namely, whether an alienee could be called on to pay a duty when such alienee had already paid one duty, is of course not relevant to the matters which we have to decide. But I have called this case the leading authority because of the lucid exposition of the Act given by Lord Macnaughten and concurred in by the Lord Chancellor, and the further opinion given by Lord Davey. Now, in the very short opinion which the Lord Chancellor himself pronounced there is one sentence which I think really settles the kind of question which we have to consider in this case. His Lordship says—“Two observations I wish to make: … one is that a succession within the Act once established no manipulation of the parties afterwards can get rid of it.” Of course it must be kept in view that something more is needed before the Crown can claim the duty, namely, that the person from whom it is claimed has become beneficially entitled to the succession. Now, was there or was there not a succession established to which Lord Cardross became beneficially entitled by what was done in 1872; for if there was, then, in the words of the Lord Chancellor, no subsequent manipulation can get rid of it, and therefore the Lord Ordinary's argument, so far as based on the effect of the subsequent disentail, falls to the ground.
That brings me straight to the question of the nature and effect of the deed of propulsion. It has certainly surprised me to find how little authority there is upon the subject and how obscure seems to be the origin of such a deed. Stair, Bankton, Erskine, and Walter Ross (though it is fair to say it scarcely fell within the scope of
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Notwithstanding all this, deeds of propulsion of the innocuous character I have indicated were doubtless fairly common, and the practice was eventually given statutory recognition by the 22nd section of the Entail Act of 1853, which enacts that “where any heir of entail in possession of an entailed estate created before the passing of the said Act” ( i.e. , the Rutherfurd Act) “shall have lawfully propelled or shall hereafter lawfully propel such estate, under reservation of his own liferent, to the heir entitled to succeed him therein, any application which has been made or shall be made by him under the recited Act or under this Act … shall be equally effectual in all respects as if he had not propelled the succession, provided the consents of the persons whose consents would have been required to such application if he had not propelled the succession as aforesaid be obtained thereto.” This section had reference chiefly owing to a decision in Pet. L. Wharncliffe , 24 Scot. Jur. 553. And the same thing is repeated in fuller form in section 13 of the Act of 1868.
The most modern authority is the case of Dupplin v. Hay , 10 Macph. 89, where it was decided that a propellee of part of an entailed estate was not an heir of entail in possession in the sense of the entail statutes, so as to be able to disentail; and Lord Kinloch gave it as his opinion that a propulsion of part of the estate was invalid per se . I mention, to show that I have not overlooked it, the case of Skeete v. Buchanan , 7 R. 15, but the case is of no authority — being decided only in the Registration Appeal Court — the grounds of judgment being different with the different Judges, and the result being contrary to what was decided by the Inner House in M'Leod , 6 S. 77, and in Dupplin , 10 Macph. 89. There is also the case of Turnbull v. Hay Newton , 14 S. 1031, but it ranks more appropriately with another class of cases which I shall presently mention.
This leaves only the case of Craigie v. Halkett Craigie , December 4, 1817, F.C., and this is really the only case which can be said, so far as decision goes, to sanction the practice of propulsion, as it is also the only case in which there is any real discussion of what propulsion is. Unfortunately the opinions are conflicting, and the result arrived at was, in my humble opinion, wrong. Yet the case is worthy of attention as being really the only discussion of this subject. In that case Mrs Halkett Craigie of Dunbarnie, heiress of entail in possession, conveyed the estate to her eldest son Major Halkett Craigie, under reservation of her liferent, and also with a reservation of full power to exercise every right whatsoever respecting the estates so far as not restricted by the entail. The entail contained a power to burden to a certain extent in favour of younger children. In virtue of this latter reservation Mrs Craigie granted provisions in favour of her younger children. Major Craigie did the same in his marriage contract. He had children, and predeceased his mother. On the mother dying the succession opened to the eldest grandchild, and then the question was raised as to whether the two sets of provisions were effectual. Memorials were ordered, and at advising Lords Balgray, Hermand, and Succoth thought both sets of provisions good — dissentientibus Lord Balmuto and Lord President Hope, who thought the mother's provisions good but the son's bad. I confess to very great difficulty in the result arrived at, but the importance of the case is that all the Judges look upon the possession of the propellee as a possession under the original entail. Thus Lord Balgray says—“It is understood in the practice of the law of Scotland that an heir in possession may propel the fee to the heir alioqui successurus , and the heir in so obtaining the fee has as good a right as if the ancestor were really dead. He is civiliter mortuus. ” Lord Succoth says—“When Mrs Halkett Craigie put forward the fee in the person of her son she voluntarily divested herself of the character of heir of entail in possession. From the moment she ceased to have this character all the right pertaining thereto passed into the person of her son.” But if the propellee is really possessing under the original entail then he is possessing what in English law phrase is called “an estate of inheritance,” and not, as the Lord Ordinary here thinks, an estate created by inter vivos disposition.
There is, however, another class of cases which I think may be usefully referred to as throwing light on the subject, and that is the set of cases in which it has been held that it is possible to work off the fetters of an entail by possession for forty years upon an unlimited title. Of these cases an example may be taken in the Earl of Eglinton v. Montgomrie , 4 D. 425, aff . 2 Bell's Appeals 149. The reason of the title being unlimited in that case was that the second entail was not recorded in the
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On the whole matter therefore I come to the conclusion that the possession of an heir in virtue of a deed of propulsion is a possession of an estate of inheritance under the old entail, and that consequently a succession is established and becomes due. Its payment, however, as regards time, is I think regulated by the 15th section, because I think there is proper acceleration by the surrender of a prior interest. The Lord Ordinary thinks that section 15 is inapplicable, his reason being, as explained by him, that “these words cover, and I think are intended alone to cover, not a fee, though it may be a fettered fee, but a charge upon the fee, as the interest of the tenant for life is a charge on the estate of a tenant in tail in England.” Now, in the first place, I think the last sentence is inaccurate. As I understand it, the tenant for life holds a separate estate from the tenant in tail, and the one is not a burden on the other in the sense that a Scottish liferent is a burden on the fee. And further, I fail entirely to see that the principle of the Duke of Northumberland's case ( [1905] AC 406 ) is at all limited to the case of tenants for life. On the contrary, looking to the observations of Lord Davey in that case, and the observations of Lord Selborne in the Earl of Zetland's case ( 5 R. (H.L.) 51), misapplied by the Lord Ordinary, I think that if in England a tenant in tail who either could not bar or had not de facto barred the entail surrendered his interest and allowed the next tenants in tail to come in, there would be a succession which would give rise to a claim for payment at the time fixed by the 15th section, i.e. , on the death of the surrendering tenant in tail.
I am therefore for recalling the interlocutor and giving judgment in favour of the Crown.
Lord M'Laren —I agree generally in the opinion which has just been delivered by the Lord President. The only observation I wish to make is with regard to a subsidiary point in the case—the question as to the effect of deeds of propulsion. In my opinion the validity of a deed of propulsion depends entirely on the question whether the deed involves a contravention of any of the cardinal prohibitions of the deed of entail, because a disponee or heir under a deed of entail is an unqualified proprietor except in so far as he is restrained by the prohibitions and fetters of the deed under which he holds. Now, if an heir of entail under the guise of a deed of propulsion were to introduce any outside person into the destination, of course that would be an alienation, and no one would think for a moment of defending such a deed. If, again, he propelled the estate in favour of a person who was presumably the heir, but a nearer heir should afterwards be born, then that would be in fact, although it might not be in intention, an alteration of the course of succession, and it would be open to the subsequently born heir, by an action of declarator or other proper legal measure, to obtain himself reinstated in his right. But if an heir propels the fee to his own eldest son, I am unable to see how such a deed could ever be challenged under the law of entail, because it is not an alienation; it introduces no new person into the destination, and it is certainly not an alteration of the course of succession; the succession after the death of the disponee
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Lord Kinnear —I agree entirely in the opinion of the Lord President, which indeed so completely anticipates all the reasons which I had intended to state to your Lordships that I should hardly have thought it necessary to add anything at all were it not for the importance of the general question. I rather think that what I do add will be merely a repetition of what has been said by the Lord President; but in consideration of the novelty and importance of the question I will state my own reasons. I observe, in the first place, that I do not understand that any question is now raised by the Crown with reference to the fee simple estate of Amondell. I understood Mr Young to say that he made no claim in respect of the succession to that estate, and the question which would have been raised, and which the Lord President dealt with in a manner in which I entirely concur, therefore does not really arise for judgment. The question for decision therefore relates only to the entailed estate of Strathbrock. As I understand the Act, any beneficial interest in property which may open to a person on the death of another person, either by disposition or by devolution of law, creates a succession in the sense of the second section of the statute. And, therefore, two things must combine in order to make the duty exigible, the right must have been created expectant upon death, and that right must have come into the beneficial possession of the person entitled. I think both of these conditions are satisfied in the present case. Nobody questions that the right of succession in favour of the present Earl of Buchan was created by the entail under which the late Earl held, and that that was a right indefeasible except by the operation of the Entail Amendments Act, which might extinguish the entail. It was a right of succession of which the father could not otherwise deprive his son, and it is common ground between the parties that the defender is now in the beneficial possession of the estate contained in the deed of entail. And therefore I should have held that the two statutory conditions were satisfied. But then it is said, and the Lord Ordinary has given effect to this view, that the right of succession created by the deed of entail has been defeated or superseded by subsequent proceedings which he details—by the deed of propulsion executed by the late Earl in favour of the present Earl, and by a disentail to which both the late Earl and the present Earl were parties. I think these two proceedings must be considered separately in order to see whether either of them had any effect in superseding or defeating the right of succession originally conceived. I do not think it is at all material to consider the question to which the Lord Ordinary adverts, whether if the entail had been undisturbed and the present Earl had succeeded as heir of the investiture on the death of his father without having been put in possession before that event he would have taken by devolution of law or by disposition. I have no doubt that the Lord Ordinary's view upon that point is right, because the present Earl was not the head of a new stirps, but succeeded his father. But that is of no consequence to the point in dispute, and the only question we have to consider now is whether the succession created by the entail has been disturbed or superseded, because if the defender in the event supposed must have been held to take by devolution of law, he still would have taken by virtue of the entailer's deed; and that is quite clearly brought out in the case of Lord Zetland , to which the Lord Ordinary refers. The principle of that decision is stated very clearly in the opinion of the late Lord President, in a passage cited by Lord Hatherley in the House of Lords—“The will of the entailer when he calls a class of heirs is that the law shall determine within that class who is the person to take on every occasion on which a death occurs among the class causing a devolution of the estate, and from this it seems to me to follow that on every such occasion the transmission of the estate from the dead to the living is a devolution by law.” But then it is not devolution by the general rule regulating succession of heritable estate in Scotland ab intestato . It is a devolution by a rule of law called in by the entailer himself, and it is in virtue of the entail that each successive heir takes up the estate. The question therefore really is whether the succession which has admittedly been created in favour of Lord Buchan has been superseded by inter vivos deeds, and in the first place by the inter vivos deed of propulsion executed by his father. Now I do not suppose it can be disputed that if a proprietor transfers his own property inter vivos either by gift or by sale to a donee or a purchaser, that is not a succession, and therefore the question really is whether the deed of propulsion effected such a transference. I am very clearly of opinion that it did not. The Lord Ordinary says that although it is called a deed of propulsion it is in fact a disposition, and that it must be remembered that the heir of entail in possession is the fiar of the estate, and can dispone except in so far as it is restricted by fetters. He appears to place the validity of the deed of propulsion on
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Lord Pearson —I could not usefully add anything to the opinions which have been delivered and in which I concur.
The Court recalled the interlocutor of the Lord Ordinary and ordained the defender to deliver an account of his succession as concluded for.
Counsel for the Pursuer (Reclaimer) — The Solicitor-General ( Ure, K.C.)— Lorimer, K.C.— A. J. Young. Agent—Solicitor of Inland Revenue ( P. J. Hamilton-Grierson).
Counsel for the Defender (Respondent) — The Dean of Faculty (Campbell, K.C.)— Chree. Agents— John C. Brodie & Sons W.S.