The Lord Justice-Clerk read the following opinion;—
The questions we have to decide depend on the nature and extent of the jus crediti acquired by the children of Sir John and Lady M'Donald under the marriage contract of their parents. The rights of the children, whatever they are, depend wholly on contract, and must be determined—by the intention of the contracting parties, according to the fair import and meaning of their obligation. When parents settle their own property by antenuptial contract on the future issue of the marriage, the children are creditors, not beneficiaries; and such rights of distribution or control as may be reserved to the parents are rights of property, not trusts in any sense, whether these be reserved solely to the owner of the property settled, or communicated to the other party in the contract, who necessarily acquires them for an onerous consideration. The position of the spouses in such a contract differs entirely from that of trustees having power conferred by a third party to distribute property in which they never had, and cannot acquire, an interest—as widely as obligations founded on contract differs from those founded on trust. In such a case as the present, the intentions of the persons who made the reservations, as expressed in their execution of the contract, may be of some moment, although their intention has been expressed in a formal instrument. In a case of trust the intentions of the trustee are of no moment at all, in construing the extent of his power. This distinction may not go far to the decision of the present case; but it was clearly illustrated by Lord curriehill in the case of Baikie ; and given effect to in the case of Moir's Trustees —and much of the terminology used in the argument seemed to lose sight of it.
There is no ambiguity as to the intention of the parties to this contract of marriage and deed of apportionment. Lady Macdonald, to whom the fund apportioned belonged, has left no doubt as to what she meant, and what she wished to do. She evidently thought that when she reserved to herself the power of annexing to her distribution such conditions as she thought fit, she retained to herself as much power over the destination of her own fortune as General M'Donald possessed over the property which he settled as its counterpart. She
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I have no doubt that the whole fund provided by the marriage contract was fully apportioned; and that no part of it remained unapportioned. The terms, as well as the manifest intention, of the instrument make this clear. The scope of the deed is to divide the whole fund into two parts, one consisting of the specific sum of £25,000 secured over Loch-Garry, and the other of the remainder of the fund. The latter half is to be devided among the younger children, with a certain condition in favour of the heir in the event of the share of each child exceeding £10,000. These shares are thus finally fixed; and although they do not reach £10,000, they form a substantial provision. Beyond this the younger children were excluded from any interest in the fund, the whole surplus being of course allotted to the only other child, the heir or eldest son, but with a superadded limitation as to its ultimate use or disposal.
The course followed in the deed is this—In the first place, General M'Donald narrates that in consideration of the declaration and apportionment following, he had so far altered the entail of Dalchosnie as to call the heirs-female of his marriage with Miss M'Inroy before the heirs-male of any subsequent marriage, and that he had settled the estates of Loch-Garry on the same series of heirs, which he was otherwise under no obligation to do. He might have divided Loch—Garry among his children, or he might have conveyed it to his second son, or he might have left it to the eldest son in fee-simple. The apportionment, then, was not without consideration, and the benefit remains both to the eldest son and the younger children.
Then come the words relative to the separate portion allotted to the eldest son, and secured over Loch-Garry. They consist of three divisions, 1st, the expression of intention, 2d, the allotment itself, and 3d, the discharge to be granted after the allotment has taken effect. [ Reads .]
I can find no room for doubt that this is an absolute allotment to the eldest son of this specific sum of £25,000. The words are precise and unambiguous, and, as I shall show immediately, the superadded direction to the trustees is inconsistent with any other reading of them.
This direction requires a little attention, as its full meaning does not seem to have been thoroughly apprehended. In considering whether it involved any excess of power, it is enough that we deal with the case which has actually occurred.
That which has occurred is precisely that which was contemplated. Colonel M'Donald took up the estate of Loch-Garry on his father's death in 1866, under the conveyance granted in consideration of this apportionment, and of course became the debtor to the trust in the bond over it to the extent of £25,000. He had a contingent prospect of becoming the creditor in this debt also, if he survived his mother; but for the six years which intervened he was personally the debtor in this bond, and might at any time have been called upon to pay it. Had any doubt arisen as to the sufficiency of the security, it might have been the duty of the trustees to realize it, and he would have been bound to pay it.
Thus at Lady M'Donald's death Colonel M'Donald became at once, by the operation of the allotment, both debtor and creditor of the trust in this sum of £25,000. The allotment took effect instantly, as payment to the trustees of the debt due by Colonel M'Donald under the bond. Colonel M'Donald ceased to owe anything to the trust, and the trust necessarily accepted the sum allotted in payment of the debt. Nothing remained but a settlement on that footing between the debtor and creditor in these mutual debts. Now, if the subject of the security had been held by Colonel M'Donald on a fee simple title, a renunciation and discharge of the debt and security would have been the only proper way of terminating the transaction. But as he was an heir of entail, and this was originally the entailer's debt, he was entitled, if he chose to demand it, to an assignation of the debt and security, that he might keep it up against the estate and the succeeding heirs. The direction to the trustees simply had the effect of excluding this right; it has no other operation; and as Colonel M'Donald could only demand an assignation after the debt was paid, it is clear that this clause only took effect because the apportionment was absolute, and was in addition to, and not a condition inherent in, the allotment itself.
There is no disguise about the object, and no doubt about the effect of this provision, although the result is more consequential than direct. The object and effect manifestly are to liberate the entailed estate from this debt, and to leave the estate so liberated entailed on the issue of the eldest son, and on the younger children and their issue in succession. It was a restriction on the heir, and a contingent benefit to the younger children. That was its nature and intention. The ultimate destination to collaterals is of no moment and quite unworthy of the place the exigencies of the argument assigned to it. Although such was the desire of Lady M'Donald, and such, in the event which has occurred, is the effect of this clause, it was not necessarily the effect of it. It required for its operation the coincidence of two contingencies—the subsistence of the entail and the subsistence of the security. The event might easily have been otherwise—General M'Donald might have sold the estate, or have become bankrupt and his creditors might have sold it—or Colonel M'Donald might have paid the debt after his succession and before his mother's death—or the entail might have turned out invalid—or the Colonel might have disentailed it. In any of these contingencies the injunction to discharge the debt would have been either superfluous or inoperative.
Such being the nature of the deed of apportionment, two questions arise—(1) Was Lady M'Donald entitled to prevent the eldest son from demanding an assignation of the debt? (2) If not, what is the
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As to the first, the effect of what is done is to subject the benefit resulting from the allotment to a protected destination in favour of grandchildren and their descendants. As I have said, I throw out of view entirely the possible succession of collaterals, not so much because we were told from the bar that there are none, as that if the benefit to the remoter descendants is effectual, this part of the destination cannot affect in any practical way the question we have to decide. There is no doubt that grandchildren are not, in the sense in which that term has of late been used, objects of such a power as this. It has been frequently decided in England that under such a settlement they are not. But that is not the question, which in my opinion is, whether the interest of descendants was or was not beyond the objects of the settlement and the intention of Lady M'Donald in the reservation contained in it? Was the condition that Colonel M'Donald should discharge this debt reasonable, and if so, are the limitations to be annexed to the term “conditions” such as to exclude it? Judging only by the analogies of the law of Scotland, I should have been inclined to hold that, looking to the clear indications of intention as well as to the unlimited nature of the reservation, and looking also to the remunerative and reasonable nature of the settlement, this direction to the trustees was not beyond the conditions expressed in the reservation. The case of M'Leod might probably have been differently decided if the reservation had been as unlimited as that which occurs here, and would certainly have been so had the reservation been “under such restrictions and clauses irritant and resolutive as he may think fit,” whatever the destination inserted in the entail might have been. But I cannot shut my eyes to the fact that this very question, under reservations quite as strong, has more than once occurred in the English Courts, and has of late years been uniformly decided against the validity of the restriction, I am therefore not prepared to differ from the judgment proposed on that ground.
On the second point, however, my opinion differs from that which has been expressed. Assuming that Colonel M, Donald could not effectually be placed under such a limitation, I am of opinion that the ease must be decided on the principle laid down by Lord St Leonards (c. 10, § 3)—“When conditions are annexed to the gift not authorised by the power, the gift is good and the condition only is void.” This rule only suffers two exceptions— first , where the condition cannot be separated from the appointment; and secondly , when the condition is a fraud on the power. In the present case, however, I have shown that the injunction to discharge was not only separate from, but could only take effect in addition to, an unqualified apportionment, and, indeed, no two things are more clearly separable than a conveyance of property and limitations as to its descent. As Lord St Leonards says, “the boundaries between the excess or proper execution are precise and apparent.” It is no answer to this view to suggest that Lady M'Donald would not have given so large a share had she known she had no power to control the destination. This might have been said in every case in which this doctrine has been applied. An attempt to limit the object of the power to a life interest, and to give the fee to grandchildren, is the usual and very conclusive illustration of the rule. The cases, and they are numerous, in which an allotment to grandchildren has been found null, and the fee to be in the appointee to the life interest, are much stronger than the present, in which the fee is given to the object of the power, and the succession alone is limited.
Neither can the present case be brought within the category of those which have been held to have been a fraud on the power. All that can be said is, that Lady M'Donald misconstrued the terms of the reservation. There can be no doubt as to the way in which she herself construed it. If she and General M'Donald had so chosen, they might have largely increased the share of the eldest son; and if General M'Donald had made the discharge of this debt a condition of the new entail, the avowed object would have been effectually accomplished. Indeed I think it doubtful whether, if the position of parties had been reversed, and the younger children had insisted that Colonel M'Donald should clear the estate of this bond, seeing he had acquired the estate in that condition, they ought not to have succeeded. The desire to increase the entailed estate, and to raise the position of the head of the family for the time, was one perfectly legitimate on the part of Lady M'Donald, and one which all the deeds, down to her last ratification, most clearly evince. Lastly, the question is not whether Colonel M'Donald is entitled to demand an assignation of the debt and security. It is whether he is entitled to require the trustees to renounce and discharge it; and whether the younger children, who would profit by the discharge, are entitled to object to his doing so. He has elected to fulfil the condition. I am very clearly of opinion that he was entitled to do so, and that the younger children, whose shares are not affected by his choice, have no interest to interfere with or prevent his doing so. The protected destination will thus take effect—not in respect of the appointment, but in respect of his choice. It has been long settled in England, on principles of very plain justice and expediency, that in equity a valid appointment may be made to persons not objects of the power, if those who are objects of the power consent; in which case the settlement is regarded as that of the object of the power himself. Many cases to this effect are mentioned by Lord St Leonards; According to the principles of our law, I think it not open to much doubt that, ingenious as the argument was, it was jus tertii to the defenders to urge it. If indeed any part of the fund be unapportioned, it would not be so; but for the reasons I have already mentioned I think this proposition untenable.
Lord Deas —The substance of this marriage—contract is, that the husband binds himself to settle the estate of Dalchosnie on the heirs-male of the marriage, whom failing, on a series of heirs therein named. The portion of the wife, on the other hand, is conveyed to trustees for the liferent use of the spouses, and with power to them to divide it among their children under such conditions as they may deem advisable.
I agree with the Lord Justice-Clerk that this is a case in which a much larger discretion is given in the use of the powers by the spouses than if they were acting by virtue of the powers conferred
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There is a great peculiarity in this case, in the fact that the husband, Sir John M'Donald, undertook to alter, and did alter, the destination of Dalchosnie, and in place of its going to the heirs—male of the marriage and then to other heirs-male named, excluding the heirs-female, the heirs—female are to come in, not merely to the estate of Dalchosnie, but also to the other estates immediately after the heirs-male of the marriage. Thus the female children of the marriage get a very important right, and whether they can set aside this deed of settlement and division as they are doing, and then claim under the deed of entail, is a question not before us at present, and one 0n which I have very great doubts.
It is an important point in this deed of apportionment that material benefits were conferred on the younger children in consideration of the mode in which they are dealt with. If what has been attempted in this deed had been confined to the issue of the marriage, I should have hesitated before interfering with the deed, but there are here mentioned collateral heirs of entail—not issue of the marriage at all, not objects of the powers—and that appears to me to be very like making an entail of this £25,000 so destined. It was said that the other members of the family were not entitled to take objection to the deed of division, and so far it is true that, generally speaking, such objection is competent only to parties whose affairs and interests are in question. But here, if the division had been confined to the objects of the power, which it was not, we do not know and have not the means of knowing that those who got less would not have got more. I am inclined to think that this case consequently forms an exception to the general rule on this point. The only plausible answer is that the younger children have no title to object because the £25,000 is the apportioned share of the eldest son, but I am afraid that the deed cannot be so read. The clause is as follows;—“The sum of £25,000 which we have allotted and apportioned, and do hereby allot and apportion, as the share of our eldest son, or failing him of the heir of entail succeeding to the said entailed estate.” We have here the heir of entail brought in as the person in whose favour the apportionment was made, and the “heir of entail” elsewhere is seen to include persons not objects of the power. Had the words been “our eldest son” only, the position of matters on this point would have been different. I am inclined to look with great favour on a deed of this kind, intended as it manifestly was to maintain the status and landed possessions of the family, but I am reluctantly obliged to come to the same conclusion as that arrived at by the Lord Ordinary.
Lord Benholme —The only question here is whether the parents under the marriage contract had the power to make such an apportionment as they have done. They cannot by the conferring of supposed benefits have purchased the power if it were not given them by the marriage contract. Nor have we ought to do with the position in which these pursuers may find themselves if they are successful, and whether or not they will have to renounce the succession.
I am clearly of opinion that this power is not exercised in favour of the objects of the apportionment. The duty imposed On the trustees is to discharge the bond, not to assign it; and it comes to the same thing as if they had purchased an estate to be strictly entailed. This £25,000 is given not to the eldest son but to the heir of entail. [His Lordship then referred at some length to the case of Munro v. Munro , 18th February 1810, which established that where a certain estate was provided by a father in favour of the children of his marriage he was not entitled to entail it and satisfy the obligation in that way; and to that of Macneil , 27th January 1826, by which it was decided that even where there was a reserve power to entail, the father had no power to enlarge this by making as restriction altering the order of succession.] I have alluded to these cases as having an important bearing on the question now before us; here the father's estate is his own, and the question comes to be whether under the marriage contract, an onerous obligation, he is entitled practically to entail. There is an essential difference between conveying an estate and entailing it.
I do not say any more on this case, but the true point turns upon what was the duty of the parents under the marriage contract—Can it be said that the father has in any way purchased to himself a power the deed gave him not? I do not think so, and accordingly am of opinion that we should adhere to the interlocutor of the Lord Ordinary.
Lord Neaves —I concur in the views expressed by the Lord President, and would only add a few sentences.
(1) I am unable to see in this case that the position of the parties gives them any support in doing what by the deed of division they have attempted. There are cases where such a position might exist, but in the present instance by their antenuptial contract of marriage the spouses divested themselves of all property in this fund.
(2) I think this £50,000 should be distributed among the children in fee simple. Instead of this, by what has been done the £25,000 would have been entailed, and passes in that case to the heirs of entail, whoever they may be. What then must be done with this £25,000? Are we to give it to the eldest son to do with it as he pleases? I cannot adopt that view. The whole object of the spouses was to entail this money, and for the accomplishment of this end the share of the other children was diminished. I cannot doubt that all this was contrary to the powers. I do not call it a fraud on the marriage contract, but it is an entire overlooking of it, and an attempt to defeat its provisions.
Upon these grounds, I am for sustaining the interlocutor reclaimed against.
Lord Ardmillan read the following opinion;—
The questions now before us have arisen in the distribution of the estate of Lady M'Donald, settled
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I am of opinion that the question must be decided according to the construction and effect of the joint deed of division and appointment executed by Sir John and Lady M'Donald on 18th July 1837. Lady M'Donald had previously executed a holograph deed of settlement and division, of date 16th March 1837, her husband being then alive. I agree with the Lord Ordinary in considering this deed to be ineffectual. As an indication of her wishes in regard to the succession of her family, the consideration of this deed may not be altogether excluded, and of these wishes I do not think there can be much doubt. But it is not effectual as a deed of appointment.
Again, after the death (on 24th June 1866) of Sir John M'Donald, his widow, Lady M'Donald, executed a trust-disposition and settlement, and also a deed, called a deed of declaration, with reference to the contract of marriage. I concur with the Lord Ordinary in holding this deed to be ineffectual as a deed of appointment. I think that the power of making division and appointment under the marriage-contract had been exercised and exhausted by the joint deed of division and appointment executed by Sir John and Lady M'Donald in July 1837.
Therefore, it is on the terms and effect of this joint deed of division and appointment this question really depends. Even if it were possible, which I greatly doubt, to give any direct effect to the separate deeds by Lady M'Donald, I think that the same objections which are urged against the joint deed of the spouses could be equally urged against the separate deeds.
If the appointment in favour of the eldest son had not been qualified by directing the transmission of the landed estate along a series of heirs of entail, I can see no good reason for refusing effect to the appointment in his favour. The power here exercised is of a nature and character which the law views favourably. Where a power of appointment or apportionment is conferred by marriage—contract on parents for distribution of the parental property among the children of the marriage, the discretion of these parents is more ample, and the exercise of the power is more favourably construed, than where the power is conferred by a party beyond the contract, or is enjoyed by a party not the parent. This principle of construction has been, I think, repeatedly recognised. Many considerations combine to support as reasonable, natural, and legitimate, such a division and apportionment as has been directed by the joint deed of of these parents; and the fact that they are the parents, and that this is their deed—their joint deed—and the clear expression of their united will, cannot be without weight. There were funds sufficient to provide for the younger children, and at the same time to gratify the wish — natural enough anywhere, and particularly so in the High lands of Scotland, cherished and expressed by these parents—to secure to the eldest son the succession to a good landed estate. It appears to me that if this was clearly the expressed will of these parents—of both parents jointly,—and separately of the lady whose fortune constituted the fund for division, then a distribution according to that will should be favourably considered.
If there had been no entail, I have really no doubt that the appointment as here made to the eldest son would have been valid and effectual. I think that the parents could have bought an estate for him—that they could have made the purchase of an estate by himself a condition of his portion, and that it might have been stipulated that on failing to fulfil that condition his portion should be reduced, say to £1000; or, to put the case otherwise, I think that, if the: estate had existed, but had been burdened with a debt, the parents could have, in like manner, directed that the sum provided to the eldest son should be applied to payment of that debt, so that the eldest son should get the estate free from the debt; or they might have directed the sum to be expended in building a mansion-house, planting woods, or draining lands. All this, I think, might have been effectually done if there had been no entail. The effect of the tailzied substitution I shall afterwards consider. Before doing so, I must say that I am, however, of opinion, that by the mere securing of the succession to the children of the eldest son after their father's death the apportionment would not have been made void. This is a question of some nicety; but I do not think that the apportionment in that case would have been void. I admit that all the fund to be apportioned must be primarily divided among persons who are legitimate objects of the power. I also admit that where there is a power of appointment limited to children, a grandchild cannot be substituted for a child. The child cannot be omitted and the appointment made to the grandchild. I am also disposed to admit that even in the case of a power exercised by parents, the fee or capital of the share appointed cannot be effectually given to a grandchild, (the liferent only being given to the child), unless this be done by arrangement with the child. Such an arrangement makes the apportionment valid, as being truly bestowed on the child apart from such an arrangement. I do not doubt that an appointment to a grandchild is void, but this is the case of an appointment of a mere liferent to the child. But the right which the proprietor of an entailed estate takes is not in law a mere liferent. According to our law such proprietor is a limited fiar—limited only so far as fettered. If he consents to take the estate with the limitation on his fee created by the entailed substitution of his own children—grandchildren of the maker of the appointment—I am not prepared to say that the appointment is null and void—that the absolute and unqualified gift to him would have been valid, but that the limited and qualified gift is void. The question is difficult. None of the authorities quoted are directly applicable. I have carefully considered it on principle, and I am of opinion that an appointment by entail in favour of a child and his children is not void. It is, at the same time, very natural. There are many reasonable and legitimate presumptions in favour of the power and of the discretion of the parents making such an appor-tionment
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But then, it is true that, after the children of the eldest son, there is in this entail a substitution of heirs, who may at some remote period be in the line not of direct lineal descent, but of descent collateral to Sir John M'Donald. So far as I can see there is no reasonable prospect—there is scarcely an intelligible possibility—of such a result, to the prejudice of any of these younger children or their families, for they themselves are in' the series of substitute heirs of entail; no collateral could succeed till they are exhausted, and so far as appears there is no collateral who could succeed. Still, viewing the question and the probabilities of result in a strictly legal aspect, I cannot differ from your Lordships on this first point so far as it goes. I am of opinion that, in so far as this sum, or the land in which it is invested, is settled on heirs collateral to Sir John M'Donald, the appointment is not effectual, since these collateral heirs are not legitimate objects of the power. But there is no such collateral: and I rather think that the substitution in favour of ultimate collaterals may be legitimately separated from the appointment to the eldest son.
A further question next arises. Assuming the appointment to be void in so far as the right of the eldest son is limited and qualified by the possible succession of collaterals under the entail, may not the eldest son throw off the illegal and invalid qualification, and take the sum appointed, free from the added quality which alone destroys its effect as an apportionment? On this point I have been very much impressed by the opinion which has been given by the Lord Justice-Clerk, and in which I concur. The usual elements of an effectual apportionment are here present. The whole fund directed to be apportioned has been here disposed of. No one who ought to have been provided for has been omitted. There is not even an elusory share given. There has been no unwarrantable augmenting of the eldest son's provision, to the injury of others. No one can now take to the prejudice of any one of these younger children; and to each and all of them shares suitable and adequate according to parental discretion have been provided. The only thing which has been done beyond or against the power of appointment conferred by the marriage—contract is, not the giving of any share to any person now existing beyond the power, but only the limitation of the share of the eldest son,—the qualification by ulterior destination of that share, which, unqualified and unlimited, would have been unquestionably his own. This raises a very peculiar question, and a question quite different from that raised in the case of Munro in 1810, or or the case of M'Neill , mentioned by Lord Benholme. These were cases where the heir on whom the limitation was laid took objection, as he had an interest to do. But in the present case who can challenge it? Since an unlimited and unfettered right could have been effectually given him, he alone has been injured by the limitation of his right. But where is the injury to any other? The provision of the large sum of £25,000, if given in excess of power, might indeed have been an injury to others; but that provision is in regard to amount not objected to. It was in itself undoubtedly legal, within the power, and according to the will of the parents. The limitation of the provision was an injury to no one but to the eldest son himself; and I doubt very much whether the limitation of his right—a right good if not limited—can be founded on by others as rendering the provision void. Take this illustration—Suppose there is a fund of £30,000 for distribution among five—that one person within the power gets £5, that another gets £20,000, and that the balance is divided among the three remaining. Then suppose that the one who gets £5 is contented, and accepts it without objection, could any of the others, desiring to get rid of the apportionment, object to the £5 share as elusory? The appointee takes it, and makes no complaint, and raises no question. Its limited or even elusory character does indeed impair his right and operate to his prejudice; but if he does not complain, and if no bad faith or conspiracy is alleged, I do not think that any other claimant could in that case take the objection that his share was unduly limited. Now the present case is very similar. The ulterior destination of the landed estate in which the share is invested operates no evil to any of the other claimants,—certainly no present injury,—prospectively no evil while they live, or their children live, or their grandchildren live, for no one can succeed preferably to them. It is truly only a limitation by ulterior substitution in very remote, almost impossible and scarcely conceivable contingency; and so far as the interests of any of these claimants are concerned it can have no effect whatever. On this point I have felt very great difficulty. I appreciate the force of the remarks made by the Lord President and also by Lord Benholme and Lord Neaves; but I am not satisfied that the effect of this tailzied substitution is to make void the whole appointment. I can find no authority which quite reaches the point; and, so far as the authorities do go, 1 accept them. On principle, I am disposed to think that, in so far as the share of the eldest son is bestowed by the deed of apportionment, it is well and effectually bestowed, and I think that the destination to his children does not destroy the appointment. I admit that, in so far as the right thus bestowed has been qualified and limited by ulterior destination to collateral heirs, that qualification and limitation is ineffectual if it impair the rights or diminish the shares of the other parties interested in the apportionment. But this impairing of other rights, or the limitation of other shares, is not in my opinion the effect of the limitation. I cannot see how the ulterior substitution can impair the shares, or diminish the interests, or injure the prospects, of the parties now objecting on any contingency in regard to succession, which reason can fairly contemplate, or which law can legitimately accept. Nothing is limited, nothing is impaired in value, except the portion conferred on the eldest son. The limitation on him may or may not be effectual as against him, but he does not object, and no other right or interest is injured. If he who might have had the portion without limitation is content to take it under the the limitation, I do not see how any one else can complain. I concur generally in the views so clearly explained by the Lord Justice-Clerk, and having thus stated the difficulties which occur to me, and which I have not been able to overcome. I shall not trespass longer on your Lordships' time.
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Lord Jerviswoode —I am very sensible of the — importance of this case, and also of the perspicuity of the observations which have fallen from the Lord Justice-Clerk and Lord Ardmillan, but after careful consideration of the circumstances I am clearly of the same opinion as the Lord President and the majority of your Lordships.
The Court adhered to the interlocutor of the Lord Ordinary, with expenses.
Counsel for Col. M'Donald (Reclaimer)— Fraser and Moncrieff. Agents— H. G. & S. Dickson, W.S.
Counsel for John Allan M'Donald— Watson and Trayner. Agents— Dewar & Deas, W.S.
Counsel for Misses M'Donald— Clark, Q.C., and Balfour. Agents— Webster & Will, S.S.C.
Counsel for A. B. M'Grigor and Pursuers— Millar, Q.C., and Marshall. Agent— A. J. Napier, W.S.