Duke of Hamilton and Turors, and Earl of Selkirk v. Archibald Douglas
Date: 9 December 1762 Case No. No 123.
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The Duke of Douglas, in a postnuptial contract of marriage with the Duchess, dated 1759, settled his estate on the heirs-male of the marriage; whom failing, on those of any subsequent marriage; whom failing, on the heirs-female of the marriage; and failing them, on his own nearest heirs and assignees whatsoever. The Duke of Hamilton, who was an heir under ancient investitures of the estate, argued, that he fell under the description of heir whatsoever by this contract of marriage, in opposition to Archibald Douglas, Esq. the heir of line; and, in support of this construction, the Duke gave in a condescendence of facts, tending to shew, that the Duke of Douglas had no intention, under this termination of his settlement in the contract of marriage, to call his heir of line, but, on the contrary, the heir of the ancient investiture; and of this condescendence a proof by witnesses was craved. Answered for Archibald Douglas, Esq; The term heirs whatsoever, denotes the heir of line or heir general. It is allowed, that in some cases ex p voluntate, arising from the face of the deeds themselves, this term may receive a different construction; but where no such presumption appears from the deeds, it is altogether incompetent to offer a proof by witnesses. The Lords found, That from the legal import of the term heirs and assignees whatsoever, Archibald Douglas, as heir of line, was called to the succession; and found, That the parole-evidence offered to the effect of giving a different meaning to the said clause was not competent.
Fol. Dic. v. 4. p. 156.
*** This case is No 40. p. 4358. voce.Fiar Absolute Limited.
