JAMES LOUTITT BRAIMER and Mandatary v ELEANORA CONGALTON or DRINKWATER BETHUNE and HUSBAND & Ors (Court of Session)

Under this deed three successive substitute heirs made up titles and enjoyed the property, the last of whom, Gilbert Congalton Bethune, after completing his titles under the entail, executed, in March 1819, a gratuitous deed of settlement and tailzie, in the form of a procuratory of resignation, in favour of himself and the heirs of his body, whom failing, to his sister, the defender, Mrs Drinkwater Bethune, and the heirs of her body, and certain other substitutes.

d , The words ‘alterations,’ ‘frustrations,’ or ‘interruptions,’ are not necessary to form a complete prohibition against altering the order of succession, which may be general in its terms. The word ‘forfeited’ in the prohibitory clause of this deed closes the prohibition against contracting debt, and its consequences; and the words which follow prohibit an alteration in the order of succession, because the words, ‘or may be otherwise affected,’ separate and disjoin the two prohibitions.

d , The words, ‘successively, conform to the order and substitution above specified,’ relate to an alteration in the order of succession, by which the relative places of the heirs may be changed, and not to a sale, adjudication, &c. whereby the substitution would be wholly evacuated.

The case of Strathbrock (Rowe v. Monypenny, 10th Feb. 1837,) is an authority for the pursuers. The present entail is more strongly expressed than the entail in that case was; 1 st , As the present entail prohibits not only deeds done in prejudice of the entail generally, (as was done in the Strathbrock case,) but particularly ‘of the subsequent heirs of tailzie and provision successively, conform to the order and substitution above specified.’ 2 d , That the description of the consequences of the first prohibited act is here more completely exhausted than in that case.

st , Although no set form of words may be required, each prohibition in an entail must be expressed in a distinct and substantive form, and in words directly and unequivocally applicable to the special act prohibited. No prohibition is to be implied, nor is an indication of intention, however clearly that may be gathered from other parts of the deed, effectual; Ersk . iii. 8. 29.