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Alexander, Earl of Caithness, by a strict entail, devised his own estate, and also the estate of Murkle, in which he had succeeded to his brother Lord Murkle, to himself and the heirs-male of his body; whom failing, to his brother Francis, and the heir-male of his body; whom failing, to the second and younger sons, successively, to be procreated of the body of Lady Dorothea his daughter; whom failing, “to George Sinclair of Woodhall, Esq. one of the senators of the College of Justice, and the heirs-male of his body; whom failing, to the said George Sinclair, his nearest lawful heir-male of line whatsoever; whom failing, to his own nearest heirs and assignees whatsoever.”
The title and honours of Caithness were descendible to heirs-male, and failing his own and his brother's male issue, devolved upon remote heirs not called in the entail, and whom the Earl did not mean to favour. This led him to insert a clause, That, excepting the heirs of his own body, his brother Francis, and the heirs-male of his body, the whole heirs succeeding to the estate should bear the name and arms of Sinclair of Murkle only, and should forfeit their right upon succeeding to any title of peerage.
Lord Woodhall was the third son of the family of Stevenston. Sir Robert, the eldest, had died, leaving male-issue. John Lockhart of Castlehill, the second, was also dead, and had left only daughters. Patrick Sinclair, the fourth, was a bachelor.
After the execution of the deed, Francis Sinclair, Lord Woodhall, and Patrick Sinclair, all died without issue. The Earl also died, leaving issue a daughter, Dorothea, Countess of Fife, who was as yet childless.
Sir John Sinclair, eldest son of Sir Robert Sinclair of Stevenston, apprehending himself to be called under the description of nearest heir-male of line whatsoever to Lord Woodhall, purchased brieves for serving nearest and lawful heir of tailzie and provision in general to the Earl of Caithness.
Lady Fife likewise took out brieves for serving heir of tailzie and provision to the Earl, under the last substitution in the tailzie; and a competition ensued.
Pleaded for the Countess: The expression “heir-male of line whatsoever,” has no meaning in the law of Scotland. Heir-male denotes one species of heir, heir of line denotes a different species of heir; and the two joined together amount to a contradiction in terms, as much as if the same person had been called under the double description of heir-male and heir-female; so that the clause must be held pro non scripto.
But, if the expression has any meaning, it cannot denote either the heir-male, or the heir of line, but a person in whom both characters are united. It is as impossible to conceive an heir-male of line, who is not heir of line, as an heir-male of line, who is not heir-male. Had the expression been Lord Woodhalls “heir-male, being his heir of line,” there could not have been a doubt in the case, and the expression actually used, is, in effect, the same, though more concise. The intention may have been to call such of Lord Woodhall's heirs-male, as should be also his heirs of line; and, failing them, to give place to the Earl's daughter. Sir John Sinclair is nearest heir-male to Lord Woodhall, but he is not heir of line; that character is in the daughters of John Lockhart of Castlehill, who are equally entitled to claim under the settlement to heirs-male of line, being only heirs of line, as Sir John Sinclair is, being only heir-male. Both of them have one of the characters in the description, and neither has the complete character.
Answered: Heir of line, and heir-male, when set in opposition to one another, are, no doubt, descriptive of different persons. But there is another sense in which the denomination of heir of line is understood in the law; and the whole argument of the Countess proceeds on overlooking that distinction.
In the succession of brothers, there is a double representation in the same degree. The succession divides: The conquest goes to the immediate elder brother, who is heir of conquest; the heritage goes to the immediate younger brother, who is heir of line, or heir-male of line.
In this case, the presona prædilecta was Lord Woodhall; failing his issue, the succession was to devolve upon his collateral heirs-male. Had the deed been expressed in these terms, there might have been a doubt whether the estate was conquest in the person of Lord Woodhall, or heritage; and, of consequence, whether it should devolve upon his heir of conquest, or his heir of line. The Earl chose to devolve it upon Patrick Sinclair, the younger brother of Lord Woodhall, the heir of line, preferably to Sir John Sinclair, the son of the eldest brother, the heir of conquest. In that view, failing issue male of Lord Woodhall, he very properly substituted his heir-male of line whatsoever, thereby calling the heir of line in preference to the heir of conquest.
Had Patrick Sinclair survived the Earl, he would have taken the estate as nearest heir-male of line of Lord Woodhall; and excluded Sir John Sinclair the heir of conquest, who, by the death of Patrick, having become heir-male of line, is clearly entitled to the succession.
“The Lords preferred Sir John Sinclair, and found that he is entitled to be served heir of provision, under the settlement of the deceased Alexander, Earl of Caithness, and repelled the objections to his service.”
For John Sinclair, Lockhart, Macqueen, H. Dundas.Alt. Burnet, Rae, Ja. Ferguson.Clerk, Ross.
Fol. Dic. v. 4. p. 308. Fac. Coll. No. 37. p. 260.
*** This case having been appealed, the House of Lords, 6th April, 1767, Ordered and Adjudged, That the appeal be dismissed, and the interlocutors complained of be affirmed.
