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a family, it was extremely doubtful whether they might be lawfully assigned to heirs of entail, or whether they necessarily descended, jure sanguinis, to the entailer's heir of line; and he accordingly suggested that the condition respecting the armorial bearings "should be so modified by the Court as to make it consistent with the law of the land." On the other hand, it was contended by the defenders, who were the nearest substitutes in the deed, that it was a perfectly lawful condition in an entail to a stranger that he should bear the granter's arms; and in support of their allegation, they pointed to the statement of Sir George Mackenzie, which we have already quoted. The same passage was also adduced by the pursuer, in the course of his pleadings, and there can be very little doubt that the doctrine which it inculcates is far more favourable to his view of the case than to that of the defenders. The Court "found it incumbent on the pursuer, and the other heirs of entail, to follow out the tailzier's appointment, in carrying the name and arms of Moir of Leckie; and for that purpose to obtain from the Lyon Office arms of that description, descendible to the heirs of entail of Leckie." It is to be observed, however, that this case was characterized by the remarkable peculiarity of the entailer solemnly disponing arms which did not happen to exist; and it is not very easy to see how any injury could thus be sustained by his heir of line. Moreover, the coat-armorial which was called into being by the authorities of the Lyon Office, in conformity with the judgment of the Supreme Court,

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IDENTICAL COAT OF ARMS

was specially intended for the heirs of entail, whose right to use the same could surely not be challenged by the heir of line. But it is by no means certain that the same decision would have been pronounced had the entailer regularly inherited a coat of arms from his ancestors, the use of which by a stranger might perhaps be lawfully challenged as an invasion of the hereditary right and privilege of the representative of the family.

Although there appears to be no recorded armorial competition between an heir of line and an heir of entail, there can be no doubt that many instances have occurred where the legal heir has been passed over by an entail, in which the use of the relative surname and arms formed an essential condition in the succession to an estate. In all such cases, it necessarily follows that the identical coat of arms may be borne by two different families; and we have only to turn to a very recent page in the Lyon Register for an instance of this "heraldic anomaly." In the year 1847, we find an entry relative to the arms of Robert Scott Wellwood (formerly Robert Scott Moncrieff) of Garvock, from which it appears that, in terms of a deed of entail, he abandoned his paternal surname and arms, and assumed those of Wellwood-the bearings of Wellwood of Garvock being duly blazoned in the Register, viz., argent, an oak tree, acorned, growing out of a well in base, proper. Crest-the trunk of an oak, sprouting out branches, with the motto, "Reviresco." The entry immediately following relates to Andrew Clarke Wellwood (formerly Andrew Clarke) of Comrie Castle, eldest co-heir and representative of the family of

BORNE BY TWO FAMILIES.

373

Garvock, who was authorized by royal license, dated 20th May 1847, to take and thenceforth use the surname of Wellwood in addition to and after that of Clarke, "in order to testify his grateful regard to the memory of his mother's family." To him also the principal Garvock arms, including crest and motto, are "assigned and confirmed by the Lord Lyon, the male issue of Robert Wellwood, his mother's paternal grandfather, having become extinct." Here, therefore, we have two families bearing arms, in all respects identical ; the one in virtue of a deed of entail, and the other in the capacity of heir-general.

When a man thinks proper to assign his armorial ensigns to a stranger, or a collateral relation, or even a younger son, and thus pass by his legal representative, surely the latter might with reason insist that the grantee could only use the arms with a clear and palpable mark of difference, so as to distinguish them from the principal bearings of the family. If it should be urged that such a course would not be in strict accordance with the conditions of the entail, it by no means follows that the heir of line would be satisfied with such an argument; under which circumstances it would appear that the only alternative on the part of the heir of entail would be to obtain the sanction of the Supreme Court (as suggested by the pursuer in the case of Moir), so to modify the terms of the deed as to make it consistent with the "common law of heraldry." Let us remember that the object in view is to avoid the 1 Lyon Register, iv. 102-3.

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66

'BARREN HONOURS" OF HERALDRY.

obvious impropriety of two different families bearing the same armorial ensigns. It is tolerably certain that, generally speaking, the heir of entail will not raise any objection; and accordingly, should the lawful representative quietly submit to the irregularity, the pure principles of the "noble science" will, in all probability, be disregarded and transgressed. And such, no doubt, has long been the usual practice. In most cases, it is hardly to be expected that the legal heir, after having been deprived of the substantial interests of the family, will make any very serious exertion to vindicate his right to the "barren honours" of heraldry; but there appears to be no reason why the Lord Lyon should not take steps to prevent such irregularities by the due exercise of his undoubted powers.

CHAPTER IX.

THE ASSUMPTION AND CHANGE OF SURNAMES AND ARMS.

THE origin of Surnames, like that of Armorial Bearings, has been variously accounted for. While some writers consider that traces of them are to be found among our Saxon ancestors, their first introduction into this country is generally assigned to a much later period. According to Mr. Lower, "The practice of making the second name stationary, and transmitting it to descendants, came gradually into common use during the eleventh and three following centuries."1 The same author, however, agrees with other writers in thinking that surnames were not established on anything like their present footing till the time of the Reformation; and suggests that the introduction of parish registers may have materially contributed to their settlement. In some parts of the country, however, hereditary surnames were not in general use till a much later date; and even "at the present day, they can scarcely be said to be adopted amongst the lower classes in the wilder districts of Wales." 2

1 Essays on English Surnames, i. 31. 2 Sixteenth Annual Report of the

Registrar-General of England, 1856, p. xvii.

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