Blackwood's Edinburgh Magazine, Volume 64, No. 393, July 1848Various
History
Blackwood's Edinburgh Magazine, Volume 64, No. 393, July 1848
Various
England -- Periodicals; Scotland -- Periodicals
We should recommend the tenant in tail to be very cautious how he
attempts to "acquire his estate in fee-simple" under the provisions
of this clause. He is to obtain the consent of the heir-substitute
next in succession. So far his course is clear. But the same person
is also designated by the term "heir-apparent under the entail of
the heir in possession." Now, is this a qualification of the general
term "heir-substitute next in succession," and must such person,
under the act, be also heir-apparent? If so, what is the particular
qualification required of him under the expression "heir-apparent?"
Adhering to the use of the phrase in popular language, we must take,
as the only circumstances under which the next heir-substitute and
the heir-apparent are one and the same person, the case in which
the first estate under the entail is limited to a man and the heirs
of his body, and the second to his second son and the heirs of his
body; then, supposing the eldest son to die in the lifetime of his
father, the second son would be both the next heir-substitute and
also the heir-apparent. Is this, therefore, the only case within
the act? Scarcely, we should think, was it so intended. Are we,
then, to interpret the word heir-apparent in the sense in which the
phrase heir-presumptive is generally used; and must we suppose that
the cases indicated are those in which there is no issue under the
first entail, and therefore the next heir-substitute is what we
should call heir-presumptive to the person in possession? If so,
what is to become of the numerous cases where there is issue to
take under the existing estate-tail? Or can it be that the issue
in tail is altogether forgotten by this act, and that the person
whose consent is required is merely the next heir-substitute in any
case? We are inclined to think this the most probable explanation of
this unfortunate clause, but can scarcely imagine that it will be
suffered to pass into a law. A further ambiguity, however, arises
with respect to this term heir-apparent, from its having a peculiar
technical meaning in the Scottish law. "He who is entitled," says
Erskine, "to enter heir to a deceased ancestor is, before his actual
entry, styled, both in our statutes and by our writers, _apparent
heir_." If the bill intends any reference to this legal acceptation
of the phrase, we can only understand the person whose consent is
required, to be such person as, being next heir-substitute, would,
on the immediate decease of the possessor, be his apparent heir,
or entitled to enter on the lands. This, again, shuts out all
those estates where the possessor has issue in tail, and would,
consequently, limit the operation of the bill to exceptional
cases. We think we have said enough to convince our readers that
this clause is not likely to set free many entailed estates in
Scotland--at all events, not without a chaos of litigation, in which
the elements of profit will have a tendency to range themselves on
Public-domain text, read in full here on John Shaqi.
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