Anstruther v Anstruther

JurisdictionScotland
Judgment Date01 January 1836
Date01 January 1836
CourtCourt of Session

English Reports Citation: 7 E.R. 13

FROM THE COURT OF SESSION IN SCOTLAND.

Sir Windham Carmichael Anstruther, Bart.
-Appellant
Mrs. Marian Anstruther
-Respondent

Mews' Dig. V. 1575. See Fisher's Trustees v. Fisher, 1850, 13 Dunlop, 245; and Breadalbane (Marquis of) v. Chandos (Marquis and Marchioness of), 4 Cl. and F. 43.

APPEAL from the court of session in scotland. Sir WINDHAM CARMICHAEL ANSTRUTHER, Bart.,-Appellant; Mrs. MARIAN ANSTRUTHER,-Respondent [May 17, 18, 19, 1836]. [Mews' Dig. v. 1575. See Fisher's Trustees v. Fisher, 1850, 13 Dunlop, 245; -and Breadalbane (Marquis of) v. Ghandos (Marquis and Marchioness of), 4 Cl. and F. 43.] An heir of line taking an entailed estate upon his father's death, cannot by the law of Scotland claim his share of his father's personalty as next of kin without first collating the entailed estate, though the entail was not created by his father, but by a more remote ancestor. The late Sir John Carmichael Anstruther, the nephew of the Appellant, being the son of his eldeir [34] brother, was born on the 6th of February 1818, and died in pupillarity on the 31st of October 1831. He was an only and a posthumous child; and was in possession, as heir of entail, from his birth, of the entailed estates of Carmichael, Anstruther, Newark and Mauldslie. The estate of Carmichael he held under a strict entail, executed by John third Earl of Hyndford, dated 27th October 1757, and recorded in the register of tailzies 22d June 1762, containing, in the course of a long destination, a substitution in favour of Sir John Anstruther, the claimant's father, and the heirs male of his body. The lands and barony of Anstruther he held under an entail by the late Sir John Anstruther, the claimant's grandfather, dated 18th February 1778, and recorded in the register of tailzies 10th March of that year; under which that estate was destined, after previous substitutions, to the Appellant's father, and the heirs male of his body, in fee. The lands of Newark were possessed under a more recent entail, dated 7th December 1811 and 20th June 1812, and recorded 15th January 1813, executed by the trustees of Sir John Anstruther, the entailer of the last mentioned estate, conveying the lands and lordship of Newark to the Appellant's elder brother, and the heirs male of his body; whom failing, to the Appellant, and the heirs male of his body; whom failing, to the substitutes called by the entail of Anstruther. Lastly, the lands and barony of Mauldslie were held upon a separate deed of entail, dated 3d, 13th, and 27th June 1791, and registered 16th June 1820, by which the trustees of John third Earl of Hyndford, conveyed that estate to Thomas Earl of Hyndford, then heir in possession under the Carmichael entail; whom failing, to a variety of [35] other substitutes; whom failing, to Sir John Anstruther, the Appellant's father, 13 IV CLARK & FINNELLY. ANSTRUTHER V. ANSTRUTHER [1836] and the heirs male of his body; whom failing, to the substitutes called by the entail of Carmichael. The whole of these estates were thus settled in strict entail, with the necessary clauses, prohibitory, irritant and resolutive. Sir John Carmichael Anstruther had completed his titles by service in special, as heir male of tailzie and provision to his father, in these estates. He possessed in fee simple certain other lands, inherited directly from his father, worth about £2000 or £3000. From the large revenues of these estates, there had been accumulated, during the pupil's minority, a sum exceeding £60,000...

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