Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Mr Lyon
v.
Miss Blair

Date: 19 June 1739

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The question here was about the construction of the clause of a tailyie; whether, by the eldest daughter or heir-female to be procreate of the marriage, was meant the immediate daughter of the marriage, in whose right Mr Lyon claimed, or the heir at law, viz. the daughter of the son of the marriage, Miss Blair.

The Lords found, That the legal meaning of the term heir-female, which in this tailyie is used to explain eldest daughter, is so fixed and appropriated in our law to denote the female heir at law, that nothing less than the express will of the tailyier, declared in so many words, can alter the signification of it: that here there is no such express will: that the words, eldest daughter, seem to have been inserted to establish a right of primogeniture among the daughters: that, in the case of Bargeny, there was a daughter living at the time of making the entail, whom it may be supposed that the tailyier, out of particular love and favour, called to the succession, to the exclusion of his heir at law; but that was not the case here, where all the persons were unborn. Therefore found, nemine contradicente, that Miss Blair, the granddaughter of the marriage, and heir at law, was called to the succession.