Lord Napier and Ettrick's Trustee v. Napier [1901] ScotLR 38_413 (28 February 1901)

Lord Napier and Ettrick's Trustee v. Napier [1901] ScotLR 38_413 (28 February 1901)

The statutory procedure under section 18 of the Entail (Scotland) Act 1882 requires, in both creditor and trustee in sequestration petitions, a three-month delay after presentation of the petition before intimation is made to the heirs whose consent is required or must be dispensed with. Any procedure affecting the rights of expectant heirs taken before this period is incompetent. The Lord Ordinary erred in proceeding without observing this delay, and all interlocutors after the initial order must be recalled.

Citation
[1901] ScotLR 38_413
Parties
Petitioner: Lord Napier and Ettrick's Trustee; Respondents: Francis Edward Basil Napier (Master of Napier) and Frederick William Scott Napier
Jurisdiction
Scotland
Judgment Date
28 February 1901
Procedural Posture
Petition for Disentail by Trustee in Sequestration / Reclaiming Note (appeal) Against Interlocutor of Lord Ordinary
Outcome
Interlocutors after 14th March 1899 recalled; case remitted to Lord Ordinary to proceed in accordance with statutory procedure; reclaimers awarded expenses.
Legal Topics
Entail, Disentailment, Bankruptcy, Procedure Under Entail (scotland) Act 1882, Statutory Interpretation
Property Law Bankruptcy Law Scottish Procedure Entail Disentailment Bankruptcy Procedure Under Entail (scotland) Act 1882 Statutory Interpretation

Case Brief

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Parties

Lord Napier and Ettrick's Trustee

Petitioner

Francis Edward Basil Napier (Master of Napier) and Frederick William Scott Napier

Respondents

Procedural Posture

Petition for Disentail by Trustee in Sequestration / Reclaiming Note (appeal) Against Interlocutor of Lord Ordinary

Legal Issues

  1. 1 Whether the statutory procedure under section 18 of the Entail (Scotland) Act 1882 for creditor applications applies identically to trustee in sequestration applications, including the requirement for a three-month delay before intimation to heirs whose consent is required.
  2. 2 Whether interlocutors pronounced before the expiry of the statutory three-month period are competent.

Ratio Decidendi

The statutory procedure under section 18 of the Entail (Scotland) Act 1882 requires, in both creditor and trustee in sequestration petitions, a three-month delay after presentation of the petition before intimation is made to the heirs whose consent is required or must be dispensed with. Any procedure affecting the rights of expectant heirs taken before this period is incompetent. The Lord Ordinary erred in proceeding without observing this delay, and all interlocutors after the initial order must be recalled.

Court Disposition

Interlocutors after 14th March 1899 recalled; case remitted to Lord Ordinary to proceed in accordance with statutory procedure; reclaimers awarded expenses.

Orders

  • Recall of interlocutor of 7th February 1901 and all subsequent interlocutors after 14th March 1899.
  • Remit to Lord Ordinary to order intimation in terms of section 18 of the Entail (Scotland) Act 1882 as in a creditor's petition.