Lord Aberdeen's Act. 447 availing himself of the provisions of the Act while the burden remains undischarged. The forms necessary for establishing and proving such a claim are so troublesome and difficult to be gone through, without some blunder fatal to its validity, that comparatively little advantage has been taken of this Act; but supposing it came, as it was intended to come, into general operation, its tendency would be greatly to aggravate the difficulties and disabilities of future heirs of entail. Its probable effect we shall immediately exhibit, but must first notice the provisions of the other statute to which we have referred, namely, Lord Aberdeen's Act. Its substance is thus given in the pamphlet already quoted from : 6 "The Act next in date and in importance is the 10 Geo. IV., cap. 87 (generally known as Lord Aberdeen's Act), 'authorizing proprietors ⚫ of entailed estates to grant provisions to the wives or husbands and chil'dren of such heirs.' It sets forth, that sundry entails contain no powers, and many others very inadequate powers, of granting such provisions; and that it has become expedient that such powers should be conferred or enlarged. Heirs of entail in possession of entailed estates, are therefore authorized to provide and infeft' their wives or husbands, as the case may be, in a liferent provision out of the entailed lands, by way of annuity, the provision to wives not to exceed one-third part, and to husbands one-half, of the free yearly rent, or free yearly value, of the entailed estates, after deducting all public burdens, liferent provisions, interest of debts, &c., affecting the rents or income of the estate. The husband's provision is limited to one-third of the rents where there is a prior existing annuity, and not more than two liferents to wives or husbands are permitted to take effect at the same time. The provisions which an heir of entail, in possession of an entailed estate, may grant, by bond or obligation, to children not succeeding to the estate, are limited, in the case of one child, other than the heir, to one year's rent,-if two children to two years' rent,-and where there are three or more children, to three years' rent, after deducting public burdens, liferent provisions to wives or husbands, interest of debts, and all other burdens which diminish the rental. When this power has been exercised to the full extent, a succeeding heir of entail is not entitled to grant farther provisions to his children till the former provisions are paid off or diminished, so that not more than the allowed maximum shall exist at one and the same time; and the succeeding heir of entail may be discharged of farther liability for such provisions to children, if sued for payment, upon assigning to a trustee, to be named by the Court of Session, one-third of the clear yearly rents of the entailed estate during the lifetime of such heir. The Act contains a farther and important clause, declaring, that the powers thereby granted, and existing under the 10th of Geo. III. (the Montgomery Act), shall not operate to the effect of depriving the heir of entail in possession, of more than two third parts of the free yearly rents or proceeds of the estate. The heir is accordingly declared to be entitled to retain any excess beyond the two-thirds of the free income, from the improvement debts and provisions which are least entitled to legal preference; and these suffer a diminution accordingly." Taking together the burdens authorized to be created by these statutes, we shall now show, by an extract from our author, how they might affect the successive heirs in possession subject to them : "The effect of the three general statutes before referred to, in creating burdens upon the rents, may be exemplified by supposing an entailed estate of £2000 per annum of gross rental, from which £200 being deducted for public burdens, there remains of clear rental, First widow's annuity, one-third, Improvement debts, six years' free rent, £7200. £1800 0 0 600 0 0 £1200 0 0 360 0 0 £840 0 0 £2520. 126 0 0 £714 0 0 238 0 0 158 13 4 Second Widow's annuity, one-third of remaining free rent, One-third of this surplus applicable towards extinction of improvement debt, There would thus only remain for the heir in possession, £317 6 8 But by Lord Aberdeen's Act the heir cannot be deprived of more than two-thirds of the rental, and consequently the payment of the improvement debt, or of the younger children's provisions, or the second widow's annuity, must be restricted accordingly; and as the debts and provisions would remain a burden on the estate, the heir in possession could not provide for his own widow or younger children." The result above shown is indeed the extreme degree of burden which can possibly be laid on heirs of entail, under these statutes, and it will only be occasionally that this degree will actually be reached. But still such burdens will unquestionably be imposed, to a large extent, in almost every case of an entailed proprietor, with a family of younger children; and as they are burdens only on the rents, not on the estate, which can never be attached for Tendencies of the System. 449 their payment, we shall have, in numerous instances, when the Act shall have been a little longer in operation, entailed proprietors perpetually burdened with provisions, the capital of which they cannot discharge, and the constant burden of the interest of which will reduce them to the possession of a limited portion of the rents, making the great body of heirs of entail still more incapable than they were before the passing of these statutesintended to relieve them-of providing for their families, improving their estates, or maintaining themselves in a position correspondent to that which the extent of their landed properties assigns them in society. Having thus explained the existing state of the law in Scotland as regards entails, and the disabilities to which it subjects the proprietors of lands subject to their fetters, we now proceed to consider their effect, on the wellbeing of the parties intended to be favoured,-on the position of the aristocracy, to secure the dignity and permanence of which the system is alleged by its supporters to be essential,-and on the prosperity of the country at large. Next to the grand object of preserving his estate in his name and family, that of benefiting his own descendants may be assumed to be the object chiefly in the view of every entailer, in making an entail; but when their actual condition thereby produced is fully considered, it may well be doubted whether, even as to them, their welfare would not have been far more wisely consulted, by leaving matters to their natural course. Assuredly, looking to the general body of the families for whose intended advantage this artificial system is put in operation, it cannot be questioned that the circumstance, which without entails would occasionally occur, of some of them, through extravagance or other causes, falling back into the mass who have to maintain themselves by their own exertions, would be far more than counterbalanced by the greatly increased happiness and usefulness of all. For let us look for a moment at the condition in which it is the tendency of the system to place entailed proprietors and their families, and in which—with exceptions of course-they are generally found, especially when the entailed estate constitutes their only possession. Take, in the first instance, the ordinary case of a proprietor, with a son who is entitled to succeed him, and a family of younger children. The son, who is to be the future proprietor, from his earliest boyhood feels that he is independent of his father, who cannot, whatever may be his misconduct or his disqualifications for performing the duties afterwards to devolve upon him, disappoint his expectations, or put any restraint, not VOL. VII. NO. XIV. 2 F already embodied in the entail, on the exercise of his powers when he shall succeed. The paternal authority is so far, and from an early period, weakened; and the heir is necessarily trained in a condition highly unfavourable to a right moral tone of feeling; while he is relieved altogether from the wholesome check, which cannot too soon be brought to bear upon a young man, arising from the consciousness that his future position in life must depend, to a large extent, upon himself and his own conduct. Then when exposed, as he grows up, to the temptations which beset all young men, and especially those with expectations in regard to succession, the heir of entail, by being already possessed of an interest in the entailed estate, defeasible only by his own death before that of his father, has means of raising funds for indulging in dissipation and extravagance, which the heir of an unentailed proprietor does not enjoy. He has a vested interest, capable of being made use of to raise money on loans. It is true he can only avail himself of it on the most oppressive terms-but still he can do so; and the extravagant amount for which he is necessarily compelled to become bound, only leaves him the more overwhelmingly embarrassed when he ultimately succeeds to his estate. Meanwhile, the father naturally looks with anxiety to the interests of his other children. If, however, he requires to make advances to establish his sons in life, or to provide some present marriage-portion for his daughters, he can only do so by borrowing money on terms far more disadvantageous than could be done by a fee-simple proprietor. He cannot give the security of his estate, but only that of his life-interest in it; and this, of course, must be supported by an insurance on his life, for which he must pay the yearly premium, in addition to the interest of the sum borrowed. This interest, too, from the disadvantages attending such securities, is usually one per cent. higher than that on loans upon ordinary heritable securities; so that, altogether, he will have to bear from 8 to 11 per cent., when the fee-simple proprietor would obtain what was required at from 3 to 5 per cent. His means of maintaining his position in society and of improving his property out of his rents, are, to this extent, diminished; and, if previously spending his full income, he is reduced to straits and embarrassments, harassing to himself and injurious to all dependent on him. This, however, is the favourable case of the man who can raise and make such advances. In many, however, perhaps in most, instances, by reason of previous burdens, whether from debts incurred by himself-perhaps before his succession-or from provisions in favour of the widow and children of the preceding Eldest Sons, and Younger Children. 451 heir, or claims for improvements, the heir in possession is altogether debarred from giving his family the same advantages which those of his class, not subject to the fetters of entail, can provide for theirs. The younger children are thus placed at undue and improper disadvantage, creating probably a feeling on their part in regard to the heir, for whose benefit their prospects are so seriously injured, which cannot promote the peace of families; while the father's anxieties on their behalf must greatly destroy his own happiness and comfort. To make up, as far as he can, for these disadvantages, he will naturally avail himself, to the fullest extent, of the power allowed by law of burdening his successor with provisions for the younger children -placing that successor in the same helpless and embarrassed condition with himself; he will grudge the expenditure of any money on the estate, however necessary to keep it up in decent or proper order; farm-houses and fences will be allowed to go into disrepair, and timber on the estate will probably be cut down; his object-most natural in his position-being simply to make as much out of it during his life, for his family other than the heir who is to succeed, and to lay out as little upon it as possible. This again, of course, creates a feeling of dissatisfaction and jealousy on the part of the eldest son. He and his father have opposite interests in regard to the management of the estate; and this position cannot but excite a state of feeling most injurious to the character and happiness of both. Then, when at last the father dies, the heir succeeds to an unimproved and often dilapidated property, burdened with provisions to the younger children, which can, under no circumstances, be paid out of the estate itself, but must subsist to be paid out of the rents, leaving him nominally the proprietor of-it may be—a large estate, with only a small portion of the rents to defray the whole expenses of management, and of keeping up and maintaining the position in society corresponding to the extent, not of his means, but of the landed property of which he is the apparent owner. On the other hand, the younger children, brought up in a position and a style of life far beyond that in which their inadequate provisions can maintain them-for, except where the younger children are very few in number, three years' rent of the estate will form a very inadequate provision-and having been denied those advantages in regard to their being set out to do for themselves, or being established in life, which a fee-simple proprietor can, without difficulty, give to his children, they, like the heir himself, remain living proofs of the injury to their wellbeing and happiness effected by this artificial system of man's devising for the gratification of human pride. |