An entailer destined his estate to ‘the heirs-male of my body and the heirs whatsoever of their bodies, whom failing to the heirs-female of my body and
the heirs whatsoever of their bodies,’ and under the condition that ‘the males of every branch through the whole course of succession above appointed shall not only be preferable to the females, but also that the eldest daughter or heir-female shall always succeed alone without division and exclude heirs-portioners.’
On the death of the only surviving son of the entailer’s eldest son a competition arose between the daughter of the eldest son of the entailer’s second son and the eldest son of the second son of the entailer’s second son.
Held (aff judgment of the Second Division) that the daughter of the eldest son of the entailer’s second son was entitled to succeed.
‘You get the very simple idea of the eldest son taking, and his family after him, and on the extinction of that family, then the second son if he has survived, but if not his family after him, and so on. Surely a much simpler idea than the other, which is, after the family of the eldest son is exhausted, to search then for the person that at the moment of the succession opening bears the character of heir-male of the body.’ (Lord Dunedin)
Judges:
The Lord Chancellor (Buckmaster), Lord Haldane, Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Parker, and Lord Sumner
Citations:
[1915] UKHL 26, 53 SLR 26
Links:
Jurisdiction:
Scotland
Wills and Probate
Updated: 26 April 2022; Ref: scu.620697