Entail Amendment (Scotland) Act 1875
| Jurisdiction | UK Non-devolved |
| Citation | 1875 c. 61 |
| Year | 1875 |
Entail Amendment (Scotland) Act, 1875.
(38 & 39 Vict.) CHAPTER 61.
An Act to further amend the Law of Entail in Scotland.
[11th August 1875]
W HEREAS it is expedient further to amend the law of entail in Scotland:
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 Parliament assembled, and by the authority of the same, as follows:
1 Short title.
1. This Act may be cited for all purposes as ‘TheEntail Amendment (Scotland) Act, 1875.’
2 Commence of Act.
2. This Act shall commence and come into operation on the passing thereof.
3 Interpretation of terms.
3. In this Act the following terms shall have the meanings hereby assigned to them, unless the same are inconsistent with the context; that is to say,
‘The court’ shall mean the Court of Session, and shall include either division of the inner house thereof, or the lord ordinary, as the case may be:
‘The lord ordinary’ shall mean the junior lord ordinary or the lord ordinary officiating on the bills in time of vacation or recess, as the case may be:
‘Land’ shall include all heritages:
‘Heir of entail’ shall include the institute:
‘Entailed estate’ shall include all heritages which by the law of Scotland may be made the subject of entail, and also all lands or other heritages held in trust for the purpose of being entailed, and all money or other property real or personal invested in trust for the purpose of purchasing land to be entailed, and also all money consigned in respect of the taking of any land forming part of any entailed estate:
‘Entail Act’ shall mean the Act of the Parliament of Scotland passed in the year one thousand six hundred and eighty-five, intituled ‘Act concerning Tailzies,’ and any other Acts of Parliament in force relating to entailed estates in Scotland:
‘Creditor’ shall include the heirs and assignees of a creditor:
‘Improvements’ shall include all or any of the following matters, and all operations necessary for carrying into effect any of such matters; that is to say,
(1) (1.) The draining, or the straightening, widening, deepening, or otherwise improving the drains, streams, and watercourses of an entailed estate, or the conducting of water to any house or houses or offices or mill or works, or to any town, village, or populous place situated on the estate;
(2) (2.) The embanking, warping, or weiring of land from the waters of the sea, or of any lake, river, or stream;
(3) (3.) The enclosing of land, and the straightening of fences, and re-division of land;
(4) (4.) The reclamation of land;
(5) (5.) The making of private roads through the estate, and the forming of roads or streets in any town, village, or populous place in so far as situated on the estate, and the making of tramways or railways or navigable canals for the benefit of and in so far as made within the estate;
(6) (6.) The trenching of land, the clearing of land, or the planting of land;
(7) (7.) The erecting or improving of, or the making additions to—
(a. ) The mansion-house or any of the mansion-houses and offices or outbuildings of the same on an entailed estate;
(b. ) Farmhouses and offices, or outbuildings for the same, and cottages for labourers, farm-servants, and artizans, whether employed on the estate or not;
(c. ) Factors, ground officers, and overseers houses, with suitable offices and outbuildings;
(d. ) Inns or hotels and offices, or outbuildings of the same on the estate;
(e. ) Shooting lodges and offices, or outbuildings for the occupation of the tenants of any shootings which may be let on the estate, and of the servants of such tenants of shootings;
(f. ) Engine houses, water wheels, water or horse mills, saw-mills, kilns, shafts, wells, ponds, tanks, reservoirs, dams, leads, pipes, conduits, watercourses, bridges, weirs, sluices, flood gates, or hatches, with all fixed machinery appertaining thereto, which will increase the value of the land for agricultural purposes, or otherwise be beneficial to the estate;
(g. ) Jetties or landing places on the shores of the sea or of a lake, or on the banks of a navigable river, for facilitating the transport of agricultural stock and produce, or of manures, or other articles needed for agricultural purposes.
4 Nearest heirs of entail may consent when 21 years of age instead of when 25 years of age, as formerly.
4. Where under the terms of the Act of the eleventh and twelfth years of the reign of Her Majesty, chapter thirty-six, or under any Acts amending the same, it is provided that the nearest heir of entail for the time entitled to succeed to an entailed estate giving his consent in any application under the said Act or Acts, shall be of the age of twenty-five years complete, it shall be sufficient, after the passing of this Act, if such heir shall be of the age of twenty-one years complete, and the said Act and and amending Acts shall be read and construed as if for the provision therein in regard to the age of such heir the provision of this Act were inserted.
5 Amendment of Section 3 of 11 & 12 Vict. c. 36. Consents to disentail estates entailed before 1st August 1848, may be given in course of application, and when such consents are not given, the court may assess the value of the heirs interests and dispense with such consents, on payment or security of such value. In case of nearest heir consent must be given by himself.
5. Whereas it is expedient that section three of the Act of the eleventh and twelfth years of the reign of Her Majesty, chapter thirty-six, should be amended: Be it enacted as follows:
(1) (1.) In any application to the Court of Session for authority to disentail an entailed estate in Scotland, holden by virtue of any tailzie dated prior to the first day of August one thousand eight hundred and forty-eight, the consent of any of the heirs of entail mentioned in the recited section entitled to succeed to such estate may competently be given after such application has been presented to the court, and in the course of the same:
(2) (2.) In the event of any of the foresaid heirs, except the nearest heir for the time, whether an heir apparent or not, entitled to succeed, declining or refusing to give or being legally incapable of giving his consent, the court may dispense with such consent in terms of the provisions following; (that is to say,)
(a. ) When any of the foresaid heirs entitled to succeed, except the nearest heir for the time, declines or refuses to give, or is legally incapable of giving his consent, the court shall, on a motion to that effect by the petitioner in the application, and on a statement by him of the declinature or refusal or incapacity of such heir or heirs aforesaid, and after such intimation to the heir or heirs so declining or refusing, or to the guardians or other persons interested in the heir or heirs incapacitated as aforesaid, as the court shall think necessary, ascertain the value in money of the expectancy or interest in the entailed estate with reference to such application of such heir or heirs declining or refusing, or incapacitated to give consent as aforesaid.
(b. ) Upon such value in money being ascertained to the satisfaction of the court, the court shall direct the sum so ascertained to be paid into bank in name of the heir or heirs the value of whose expectancy or interest has been ascertained as aforesaid, or that proper security shall be given over the estate which is the subject of application for the amount so ascertained in favour of the heir or heirs aforesaid.
(c. ) Upon such value in money being so paid or secured, to the satisfaction of the court, the court shall dispense with the consent or consents of the heir or heirs, the value of whose expectancy or interest has been ascertained as aforesaid, and shall thereupon proceed as if such consent or consents had been obtained: Provided always, that nothing herein contained shall render it competent to dispense with the consent of the nearest heir for the time entitled to succeed to any entailed estate sought to be disentailed.
(3) (3.) So much of the recited section as provides that the heir of entail in possession, being the only heir of entail in existence for the time, shall be unmarried when he exercises the powers conferred upon him by the recited section, is hereby repealed; but nothing herein contained shall affect the provisions of section eight of the recited Act.
6 Provisions of preceding section as regards consents to apply to applications for selling, burdening, &c.
6. The provisions of the preceding section with reference to applications for authority to disentail shall apply also where an heir of entail in possession of an entailed estate in Scotland, holden by virtue of any tailzie dated prior to first August one thousand eight hundred and forty-eight, applies for power to sell, alienate, dispone, charge with debts or incumbrances, lease or feu, or excamb such estate in whole or...
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