Scottish Court of Session Decisions

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

Countess of Fife
v.
Sir John Sinclair

Date: 2 August 1766

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll IV. p. 260.]

The late Lord Caithness made a settlement, in which he passed by his own daughter, the Countess of Fife, and likewise the heir-male of his family and honours, and calls to his succession a perfect stranger, viz. Lord Woodhall, and the heirs-male of his body; whom failing, his heirs-male of line whatsoever; whom all failing, his own nearest heirs and assignees whatsoever; under which last appellation his daughter, the Countess, was only called. At the time of making this settlement, Lord Woodhall’s younger brother, Peter Sinclair, was alive; his immediate elder brother was dead, leaving daughters; and his eldest brother was dead also, leaving a son, the foresaid Sir John Sinclair.

The question was, What was the meaning of the destination to heirs-male of line of Lord Woodhall; whether it meant his heirs-male whatsoever, under which his nephew Sir John was called, or whether it meant his heirs-male, who were also his heirs of line, under which description Sir John was not called, the daughters of Mr Lockhart of Castlehill being the heirs of line of Lord Woodhall, his younger brother, Peter Sinclair, was dead at the time of the competition?

The Lords were all of opinion that the destination meant no more than heirs-male whatsoever, but upon different grounds.

Lord Auchinleck thought that heir-male of line meant no more than what is vulgarly called lineal heir-male, and he did not think that Lord Caithness had in view the distinction betwixt heir-male of line and heir-male of conquest.

Lord Alemore, on the other hand, thought that Lord Caithness had this distinction in view,—that Peter Sinclair, being undoubtedly Lord Woodhall’s heir-male, as well as his heir of line, was called,—and that, as Sir John, by his death, was become both Lord Woodhall’s heir-male of line and heir-male of conquest, he was also called.

Lord Kaimes thought that, by the words heir-male of line, Lord Caithness meant to distinguish Lord Woodhall’s natural heir-male from any heir-male which he might make to himself by a particular deed of settlement.

And lastly, Lord Pitfour was of opinion, that the words, of line, were not superfluous in this description, and that, according to the strict propriety of words, Sir John was not called; but he said that Lord Caithness had explained his meaning to call Sir John, by some private letters of correspondence produced, which were written both before and after the settlement was executed.