Baird v. Baird's Curator AD Litem [1922] ScotLR 474 (08 July 1922)

Baird v. Baird's Curator AD Litem [1922] ScotLR 474 (08 July 1922)

The marriage contract constituted a trust with a direction to entail, bringing the case within sections 27 and 28 of the Entail Amendment Act 1848. The operative date of the entail is the date of the marriage contract (3 April 1879), so the petitioner, born after that date, is entitled to disentail and acquire the entailed moneys without the consents of the next heirs.

Citation
[1922] ScotLR 474
Parties
Petitioner: Sir James Hozier Gardiner Baird of Saughtonhall, Baronet; Respondents: Children of the petitioner's deceased younger brother (represented by curator ad litem)
Jurisdiction
Scotland
Judgment Date
08 July 1922
Procedural Posture
Petition for Authority to Disentail and Acquire Entailed Moneys / Inner House, First Division, on Reclaiming Note (appeal) From Lord Ordinary
Outcome
Petition granted; reclaiming note refused; Lord Ordinary's interlocutor affirmed.
Legal Topics
Entail, Disentail, Trusts, Marriage Contract, Statutory Interpretation, Consents of Heirs
Property Law Trusts and Estates Scottish Entail Law Entail Disentail Trusts Marriage Contract Statutory Interpretation +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Sir James Hozier Gardiner Baird of Saughtonhall, Baronet

Petitioner

Children of the petitioner's deceased younger brother (represented by curator ad litem)

Respondents

Procedural Posture

Petition for Authority to Disentail and Acquire Entailed Moneys / Inner House, First Division, on Reclaiming Note (appeal) From Lord Ordinary

Legal Issues

  1. 1 Whether a marriage contract with a direction to entail constitutes a trust to which sections 27 and 28 of the Entail Amendment Act 1848 apply
  2. 2 What is the operative date of the entail for statutory purposes under the Act
  3. 3 Whether the petitioner can disentail and acquire entailed moneys without the consents of the next heirs

Ratio Decidendi

The marriage contract constituted a trust with a direction to entail, bringing the case within sections 27 and 28 of the Entail Amendment Act 1848. The operative date of the entail is the date of the marriage contract (3 April 1879), so the petitioner, born after that date, is entitled to disentail and acquire the entailed moneys without the consents of the next heirs.

Court Disposition

Petition granted; reclaiming note refused; Lord Ordinary's interlocutor affirmed.

Orders

  • Authority granted to petitioner to record a deed of disentail and to acquire the entailed moneys without consents of next heirs.