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Dalchosnie Disentail Case — McDonald v McDonalds

Published online by Cambridge University Press:  18 August 2016

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Type
Law Reports
Information
Journal of the Institute of Actuaries , Volume 23 , Issue 2 , October 1881 , pp. 77 - 124
Copyright
Copyright © Institute and Faculty of Actuaries 1882

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References

page 79 note * The Entail Amendment (Scotland) Act, 1875, (38 and 39 Vic. c. 61) sec. 5, sub-see. 2, enacts,–” In the event of any of the foresaid heirs (i.e., the heirs whose consent to a disentail is required by section 3 of the Entail Amendment Act, 1848), 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 valuein 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 received 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.”

page 86 note * I t was afterwards remitted to two land surveyors to report as to the value of the estate; and they reported that the clear annual value was £1,700, including about £67 5 for shootings; and that the selling value of the estate, including the growing wood, was £52,000.

page 99 note * Davidson v. Davidson, 11 Feb. 1860, 22 D. 749, 32 Scot. Jur. 305.