Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 HEIRS WHATSOEVER.
Subject_3 See case of Douglass against Duke of Hamilton, - interlocutor in that cause.

Brodies
v.
Brodie

1749.

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Thomas Brodie was proprietor of the lands of Pitgaveny, under ancient settlements in favours of heirs-male, and which originally contained a clause of return to the granter and his heirs-male whatsoever, upon failure of the male descendants of his body. In 1721, Thomas Brodie settled the estate on his three sons, nominatim, and the heirs-male respective of their bodies; whom failing, on any other heir-male of his own body ; whom all failing, on his own nearest lawful heirs and assignees whatsoever. After Thomas's death, and the death of his three sons, without issue,—his daughters, as heirs-portioners to David Brodie their brother, claimed the succession ; and Mr Brodie of Lethem also claimed it, contending, that, as this was a male fee in Thomas, his nearest heirs whatsoever, in the above settlement, must denote, not his heirs-general, or heirs of line, but his heirs-male, who, by the investitures of the estate, were his nearest lawful heirs.

The Lords preferred the heirs of line ; for although, where a person possessed of an estate taken to heirs-male, if he purchase a collateral right, and takes it to his heirs whatsoever, such collateral right will notwithstanding go to his heirs-male, not only upon the maxim that accessoriiun sequitur principale, but upon this, that he could not mean to divide them ; yet, in all other cases, where a proprietor makes a settlement of his whole estate, and calls his heirs whatsoever, these technical words are taken in their proper sense, and will carry it to the heirs of line, more especially where, in the same settlement, he first calls the heirs-male of his body ; and, upon their failure, his heirs whatsoever.

The decision in the case of Rosehall, between Miss Hamilton, daughter to Sir Hugh, and Hamilton of Dalziel, proceeded on the same principles, of interpreting technical words according to their legal and determined meaning. It is not collected, but is quoted in the information for Mr Douglas against D. Hamilton, decided December 1776. Miss Hamilton died whilst it depended on a reclaiming petition and answers.

There is a case collected in the Dict., Vol. II. p. 401, Marquis of Clydesdale against Earl of Dundonald, which seems to countenance a contrary doctrine, even in general settlements; but the decision, as collected, proceeds upon a mistake ; for, upon looking into the papers, it appears that the disposition upon which the charter proceeded was to heirs-male ; whereas the charter proceeding upon that disposition was expede to heirs whatsoever. When challenged, therefore, it was found disconform to its warrant, and the heir-male prevailed.

This decision has led Mr Erskine into a mistake, on this point, in his Institutes, p. , where he quotes it.