Dubious Clauses. - Revocation of a Tailzie. - Liberty to contract Debt. - Conjunctly and Severally. - Just and Lawful Debts. - Liferent and Fee. - Back-Bond. - Importing Property or only Servitude.
Emilia and Margaret Farquharsons v. James Farquharson
Date: 2 March 1756 Case No. No 43.
The words of, a deed, disponing ‘all lands which should pertain to the granter at the time of his death, to his brother's heirs and assignees whatsoever,’ were not found to comprehend a subject to which the granter afterwards succeeded, that from circumstances appeared not to have been within the granter's intention.
Click here to view a pdf copy of this documet : PDF Copy
The lands of Inverey and Tullich, holding of subjects superiors, belonged to John Farquharson. He had issue, by his first marriage, two sons, Patrick and Charles; by his second, James the defender.
The ancient destination of the lands aforesaid was to heirs-male; but the lands were, evicted from John, and purchased by his son Patrick.
Patrick obtained charters of resignation from his superiors, and took the succession of the said lands, devised “to the heirs-male of his body; whom failing, to his heirs-male whatsoever; whom failing, to his heirs and assignees whatsoever.”
Patrick was married twice; by his first marriage he had issue, daughters only. In the 1714, by marriage-contract with his second wife, he provided the said lands “to the heir-male of that marriage; whom, failing, to his heirs-male whatsoever; whom failing, to his heirs and assignees whatsoever.” This contract contains a procuratory of resignation in the terms above mentioned.
Of this marriage he had issue, two sons, Joseph and Benjamin, and two daughters, the pursuers.
In the 1737 Patrick died, and was succeeded by his son Joseph, who died also in the same year, without compleating his titles. He was succeeded by his brother Benjamin, who, in 1738, made up titles to the lands of Inverey and Tullich; and dying soon after, was succeeded by his uncle Charles, brother-german of Patrick,
This Charles, in the 1721, executed a deed of the following tenor:
“For certain reasonable causes, he sells, assigns, and dispones to, and in favour of Patrick his brother, his heirs and assignees whatsoever, all lands, heritages, tenements, annualrents, debts, sums of money, heritable and moveable, and all goods whatsoever which shall happen to pertain to him at the time of his decease, whenever the same shall happen.”
This disposition is granted with the burden of all debts contracted, or to be contracted; reserves a power to alter even on death-bed; and contains a clause dispensing with delivery.
In 1739, Charles executed a procuratory for resigning the estate of Auchlossan, his own purchase, in favour of himself and the heirs-male of his body; whom failing, to his other heirs-male.
Afterwards, in the same year, Charles was served heir-male in general to his nephew Benjamin, the person last infeft, and also obtained precepts of clare for infeftment in Inverey and Tullich, as heir to him.
Upon the death of Charles, in the 1747, James, his brother consanguinean and heir-male, took possession of the estates of Inverey and Tullich, in virtue of the investitures to heirs male.
Emilia and Margaret, the daughters of Patrick, insisted in an action against James, for having it declared that they, in virtue of the disposition in the 1721, had right to the lands of Inverey and Tullich, as heirs whatsoever of Charles, and that James should make up titles and denude himself in their favour.
Pleaded for the defender, The pursuers cannot take by the deed 1721; for that, 1mo, It being conceived in favour of Patrick first, and then of his children, can bestow no more on them than on him: Now, it could not mean to bestow on him the lands of Inverey and Tullich, which were already his property. Charles had in view the event of Patrick's succeeding to him, not the event of his succeeding to the estates of Patrick; as Charles had no expectation of this last event, he cannot have had any intention of providing for it; consequently the words heirs whatsoever, are words without intention, and as such ineffectual in law. But, independent of this, 2do, Although the expression heirs whatsoever, does, in the abstract, imply heirs of line; yet, when it is used in any particular deed, it must be explained according to the intention of the disponer, and the nature of the subject disponed. As in the 1721, the investitures of Inverey and Tullich were to the heirs male of Patrick; the words heirs whatsoever of Patrick, must be understood of heirs male; which character belongs to the defender. By that expression Charles could not have intended heirs of line; for that, in the 1739, he devised Auchlossan to heirs-male: Now he never could have devised his conquest to heirs-male, and Inverey and Tullich, his paternal inheritance, to heirs of line.
Answered for the pursuers, He who grants a general disposition of whatever subjects shall belong to him at his death, has no special lands or moveables in view. Such disposition conveys not particular subjects, but the chance of succeeding to all subjects whereof the disponer shall die possessed; the extent of what is conveyed will be ascertained from the condition of the disponer's estate at his death. Thus, in the present case, Charles, when he executed the deed 1721, had no view to Inverey and Tullich; yet, as those estates devolved to him they came under the description of “all lands belonging to him at the time of his death,” and fall to the pursuers as heirs whatsoever of Patrick, called by the deed 1721. As Charles survived Patrick, he saw that event which is said to have been unforeseen; yet did he not revoke the deed 1721, neither can the Court. The settlement of Auchlossan in the 1739, can have no further effect than as to the estate thereby settled.
2do, To the arguments from the supposed ambiguity of the expression heirs-male whatsoever, it is answered, That the expression is variously interpreted in purchases of rights, but not in settlements. When a purchaser is unwilling to communicate to the seller the nature of his family settlements, he takes his purchase to heirs whatsoever. This expression will, in law, be limited or extended according to the settlements; but in the settlements themselves it has a determined technical meaning, and must imply heirs of line.
‘The Lords found no action competent to the pursuers, in virtue of the deed 1721 against the defender, to oblige him to denude of the estates of Inverey and Tullich.’
Act. Miller, Brown et Lockhart.Alt. Wedderburn, Garden et Ferguson.Clerk, Kirkpatrick.
Fac. Col. No 193. p. 285.
This cause was appealed.—The House of Lords Ordered and Adjudged, That the interlocutor complained of be affirmed.
