Entail Amendment Act 1848

JurisdictionUK Non-devolved
Citation1848 c. 36
Anno Regni VICTORI, Britanniarum Regin,Undecimo & Duodecimo. An Act for the Amendment of the Law of Entail inScotland .

(11 & 12 Vict.) C A P. XXXVI.

[14th August 1848]

'WHEREAS the Law of Entail inScotland has been found to be attended with serious Evils, both to Heirs of Entail and to the Community at large, and it is expedient that the same be amended in manner herein-after provided for:' Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliamentassembled, and by the Authority of the same, That where any Estate inScotland shall be entailed by a Deed of Tailzie dated on or after the First Day of August One thousand eight hundred and forty-eight it shall be lawful for any Heir of Entail born after the Date of such Tailzie, being of full Age, and in possession of such entailed Estate by virtue of such Tailzie, to acquire such Estate in whole or in part, in Fee Simple, by applying to the Court of Session for Authority to execute and executing, and recording in the Register of Tailzies, under the Authority of the Court, an Instrument of Disentail in the Form and Manner herein-after provided; and it shall be lawful for any Heir of Entail, being of lawful Age, and in possession of such entailed Estate by virtue of such Tailzie, though born before the Date of such Tailzie, with the Consent, and not otherwise, of the Heir next in succession, being Heir Apparent under the Entail of the Heir in possession, to acquire such Estate, in whole or in part, in Fee Simple, by applying to the Court for Authority to execute and executing, and recording in the Register of Tailzies, under the Authority of the Court, an Instrument of Disentail in the Form and Manner herein-after provided: Provided always, that such Consent to such Instrument of Disentail shall not be valid and effectual unless granted by a Person of the Age of Twenty-five Years complete, not subject to any legal Incapacity, and born after the Date of the Tailzie to which such Instrument applies.

S-II Heir in possession under an existing Entail born after 1st August 1848 may disentail; born before that Date, may do so with Consent of Heir next in succession, being Heir Apparent born after 1st August 1848.

II Heir in possession under an existing Entail born after 1st August 1848 may disentail; born before that Date, may do so with Consent of Heir next in succession, being Heir Apparent born after 1st August 1848.

II. And be it enacted, That where any Estate inScotland is held by virtue of any Tailzie dated prior to the said First Day of August One thousand eight hundred and forty-eight it shall be lawful for any Heir of Entail born on or after the said First Day of August , being of full Age, and in possession of such entailed Estate by virtue of such Tailzie, to acquire such Estate, in whole or in part, in Fee Simple, by applying to the Court of Session for Authority to execute and executing, and recording in the Register of Tailzies, under the Authority of the Court, an Instrument of Disentail in the Form and Manner herein-after provided; and it shall be lawful for any Heir of Entail, though born before the said First Day of August One thousand eight hundred and forty-eight, being of full Age, and in possession of such entailed Estate by virtue of such Tailzie dated prior to the said First Day of August , with the Consent (and not otherwise) of the Heir next in succession, being Heir Apparent under the Entail of the Heir in possession, he being born on or after the said First Day of August One thousand eight hundred and forty-eight, and being of the Age of Twenty-five Years complete at the Time of granting such Consent, and not subject to any legal Incapacity, to acquire such Estate, in whole or in part, in Fee Simple, by executing, under Authority of the Court, an Instrument of Disentail as aforesaid, in the Form and Manner herein-after provided.

S-III Heir of Entail under an existing Entail may disentail, with certain Consents.

III Heir of Entail under an existing Entail may disentail, with certain Consents.

III. And be it enacted, That it shall be lawful for any Heir of Entail, being of full Age, and in possession of an entailed Estate inScotland holden by virtue of any Tailzie dated prior to the said First Day of August One thousand eight hundred and forty-eight, to acquire such Estate, in whole or in part, in Fee Simple, by applying to the Court of Session for Authority to execute and executing, and recording in the Register of Tailzies, under the Authority of the Court, an Instrument of Disentail in the Form and Manner herein-after provided: Provided always, that such Heir of Entail in possession shall be the only Heir of Entail in existence for the Time, and unmarried, or otherwise shall have obtained the Consents of the whole Heirs of Entail, if there be less than Three in being at the Date of such Consents and at the Date of presenting such Application, or otherwise shall have obtained the Consents of the Three nearest Heirs who at the said Dates are for the Time entitled to succeed to such Estate in their Order successively immediately after such Heir in possession, or otherwise shall have obtained the Consents of the Heir Apparent under the Entail and of the Heir or Heirs, in Number not less than Two, including such Heir Apparent who in Order successively would be Heir Apparent: Provided also, that the nearest Heir of Entail for the Time entitled to succeed to such Estate immediately after such Heir in possession, where any such other Heir exists, shall be of the Age of Twenty-five Years complete, and not subject to any legal Incapacity.

S-IV Heir of Entail may sell, charge, lease, and feu, with the like Consents as enable him to disentail.

IV Heir of Entail may sell, charge, lease, and feu, with the like Consents as enable him to disentail.

IV. And be it enacted, That it shall be lawful for any Heir of Entail, being of full Age, and in possession of an entailed Estate inScotland , with such and the like Consents as by this Act would enable him to disentail such Estate, to sell, alienate, dispone, charge with Debts or Incumbrances, lease and feu such Estate, in whole or in part, and that unconditionally, or subject to Conditions, Restrictions, and Limitations, according to the Tenor of such Consents, the Authority of the Court of Session being always obtained thereto in the Form and Manner herein-after provided; and such Heir of Entail shall be entitled to make and execute, at the Sight of the Court, all such Deeds of Conveyance and other Deeds as may be necessary for giving Effect to the Sales, Dispositions, Charges, Leases, or Feus so made and granted.

S-V Heir of Entail under existing Entail may excamb, with certain Consents.

V Heir of Entail under existing Entail may excamb, with certain Consents.

V. And be it enacted, That it shall be lawful for any Heir of Entail, being of full Age, and in possession of an entailed Estate inScotland holden by him by virtue of any Tailzie dated prior to the said First Day of August One thousand eight hundred and forty-eight, with the Consent of the whole Heirs of Entail if there be less than Three in being at the Date of such Consents and at the Date of presenting Application for the Authority of the Court as after mentioned, or otherwise with the Consent of the Three nearest Heirs who at the said Dates are for the Time entitled to succeed to such Estate in their Order successively immediately after such Heir in possession, or otherwise with the Consent of the Heir Apparent under the Entail, and of the Heir or Heirs, in Number not less than Two, including such Heir Apparent, who in Order successively would be Heir Apparent, to excamb such Estate, in whole or in part, the Authority of the Court of Session being always obtained thereto in the Form and Manner herein-after provided, and such Heir of Entail in possession shall be entitled to make and execute, at the Sight of the Court, all such Contracts of Excambion and other Deeds as may be necessary in order to give effect to such Excambions, by the Substitution of the Lands to be acquired in the Room and Place in all respects of the Lands to be disponed.

S-VI Provision for Disclosure of Entailer's Debts which affect the Estate disentailed.

VI Provision for Disclosure of Entailer's Debts which affect the Estate disentailed.

VI. And be it enacted, That where any Heir of Entail in possession of an entailed Estate inScotland shall apply to the Court of Session under this Act in order to disentail such Estate, in whole or in part, or to sell, alienate, dispone, charge with Debts or Incumbrances, lease, feu, or excamb the same or any Part thereof, he shall make and produce in such Application an Affidavit setting forth that there are no Entailer's Debts or other Debts, and no Provisions to Husbands, Widows, or Children, affecting or that may be made to affect the Fee of the said entailed Estate or the Heirs of Entail, or, if there are such Debts or Provisions, setting forth the Particulars of the same, with the Amounts thereof respectively, Principal, Interest, and Expenses, and the Vouchers by which the same are instructed, and the Names, Designations, and Residences of the Parties in right of the same; and the Court shall not proceed with such Application until such Affidavit is lodged; and, if the Court...

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