Sir John Henderson, Bart. v. Robert Bruce Henderson, Esq.

Factual and Procedural Background

An estate known as Earshall was originally held by Ancestor A under a destination to heirs male. Having no sons, Ancestor A executed a settlement in favour of his four daughters in 1728. The estate was, however, heavily encumbered and several creditors held adjudications over it.

The eldest surviving daughter—hereafter Heir Female—chose not to serve herself heir. Instead, a creditor, Creditor A, entered into possession after completing adjudications. Through a series of contractual arrangements, Creditor A ultimately agreed to convey his rights to Heir Female, subject to security for outstanding sums.

Heir Female remarried twice. Her second husband—hereafter Entailer—methodically purchased or obtained rights to the adjudications and, by 1739, obtained a Crown charter, becoming infeft in Earshall. In 1740 the Entailer executed a strict entail. The entail (a) placed Earshall in conjunct fee and liferent for himself and Heir Female, (b) set out a sequence of substitutes, and (c) contained a special devolution clause: whenever Earshall devolved upon the family already holding another estate, Fordell, the Earshall holder was bound to denude in favour of the next heir so that both estates would not be held by the same person.

The Entailer died in 1741. Heir Female possessed Earshall until her death in 1774. At that point the next substitute, Deceased Heir (nephew of the Entailer and proprietor of Fordell), completed title to Earshall as heir of entail. Deceased Heir died leaving two sons: the elder (Appellant) and the younger (Respondent). Contrary to the devolution clause, Appellant retained both Fordell and Earshall. Respondent then brought an action in the Court of Session seeking declarator that Appellant must denude of Earshall in Respondent’s favour.

The Lord Ordinary, later affirmed by the Inner House, repelled Appellant’s defences and ordered denuding. Appellant appealed to the House of Lords, which issued the present decision.

Legal Issues Presented

1. Whether the Entailer held the fee of Earshall in his own right so as to enable him lawfully to execute a binding entail.
2. Whether the devolution clause—requiring Earshall to pass to the next heir whenever Earshall and Fordell would otherwise unite in one person—was valid and enforceable in the circumstances that occurred.

Arguments of the Parties

Appellant's Arguments

• The Entailer never had full fee ownership; at most he held Earshall in trust for Heir Female. Consequently, he lacked power to impose a tailzie (strict entail) on the estate.
• Even if the entail were valid, the devolution clause did not apply because Deceased Heir already possessed Fordell before succeeding to Earshall; the clause, it was argued, contemplated the reverse sequence.

Respondent's Arguments

• The conveyancing chain—including adjudications, dispositions, Crown charter and infeftment—vested the fee in the Entailer absolutely, empowering him to settle Earshall by entail.
• The wording of the devolution clause was unconditional: its object was to prevent any future union of the two estates in one heir, irrespective of the order in which they were acquired.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The House of Lords adopted the reasoning of the Court of Session and summarily affirmed its interlocutors. The essential analytical steps were:

• Title to the Fee. On the conveyancing record, the Entailer obtained a Crown charter “to him and his heirs and assignees whatsoever,” following adjudications and a formal disposition from Creditor A. The Lords accepted that this vested the fee in the Entailer and not in Heir Female.
• Power to Entail. Because the fee was in the Entailer, he was competent to create a strict entail with prohibitory, irritant and resolutive clauses. The recordation of the entail further perfected its effect against successors.
• Validity of the Devolution Clause. The clause expressly directed that whenever Earshall “came into the family of Fordell,” the Earshall holder must denude in favour of the next heir. The Lords held the clause clear, lawful and binding, rejecting the construction advanced by Appellant that sequence of acquisition mattered.
• Application to the Facts. Appellant, as heir of Deceased Heir and present holder of both estates, stood directly within the factual condition triggering devolution. The failure to denude contravened the entail; thus the statutory irritancy operated, and Respondent became entitled to Earshall.

Holding and Implications

APPEAL DISMISSED; INTERLOCUTORS AFFIRMED.

The decision compels Appellant to complete titles to Earshall and denude in favour of Respondent, separating Earshall from Fordell in accordance with the entail. The judgment reinforces the enforceability of devolution conditions within Scottish entails where the maker held an unquestioned fee, but establishes no new precedent beyond its factual matrix.