On a Problem occurring in connection with Entailed Estates in Scotland

Extract

The position of an entailed proprietor in Scotland (technically called an heir of entail in possession) differs in many important respects from those of a tenant for life and a tenant in tail in England. One fundamental difference is, that the entailed proprietor in Scotland has all the rights of a landed proprietor except those which are taken from him by the deed constituting the entail, whereas the tenant for life in England has only those rights which are expressly conferred upon him by the deed under which he holds. There is a still more important difference as regards the power to disentail the estate. Before the passing of the Rutherfurd Act (11 & 12 Vic., c. 36) Scotch entails were perpetual. The entail might sometimes be set aside after a suit in the Courts, in consequence of some defect or informality—perhaps very slight—in the deed constituting it; or an entail might expire, in consequence of the total failure of heirs; but under no other circumstances could the entail be got rid of.