Farquhar v Farquhar
| Jurisdiction | Scotland |
| Judgment Date | 29 November 1838 |
| Year | 1838 |
| Date | 29 November 1838 |
| Docket Number | No. 34 |
| Court | Court of Session (Inner House - First Division) |
Ld. Cuninghame. N.
Entail—Heir-portioner.—
IN 1772, Alexander Farquhar of Gilmilnscroft, having one child, a daughter, executed a deed by which, on the narrative of affection for her, and a desire to continue the estate in his family, he disponed it, ‘with and under the reservations, conditions, &c., after mentioned, to and in favours of the heirs-male of this my present or any subsequent marriage, and the heirs-male of their bodies; whom failing, to the said Jean Farquhar, and to the heirs whatsomever of her body; whom failing, to the heirs-female of my said present or any subsequent marriage, and the heirs whatsomever of their bodys; whom failing, to Doctor William Farquhar, physician in New York, America, my brother-german,’ and other heirs. The destination terminated in favour of the entailer's own nearest heirs and assignees whomsoever. Alexander Farquhar bound himself to infeft ‘the heirs-male of this my present or any subsequent marriage, and the heirs-male of their bodies; whom failing, the said Jean Farquhar and her foresaids; whom failing, the heirs-female of my present or any subsequent marriage, and the heirs whatsomever of their bodies; whom failing, the several other persons above mentioned, substitute, &c.’ The procuratory, and the precept, bore to be for infeftment in the same terms. The deed contained the usual prohibitions in strict entails, against debts, sales, or alterations of succession, &c., and these prohibitions were fenced with irritant and resolutive clauses. The obligation, usual in strict entails, was imposed on Jean Farquhar and the ‘other heirs of tailzie’ to record the deed in the register of tailzies, and to possess the lands ‘upon this deed of entail only, and upon no other right or title whatsomever.’ In various clauses of the entail, the phraseology seemed to imply that the entailer was, in such clauses, contemplating the case of only one heir, male or female, being in possession for the time; as in the clause declaring ‘that if the heir in right of this my estate for the time, shall be cloathed with a husband, that notwithstanding thereof it shall be competent to her to make the aforesaid alteration of the course of succession.’ The alteration of succession, here referred to, was in reference to a power given ‘to the said Jean Farquhar, and the other descendants of her body, so often as their apparent or presumptive heirs are female, so far to alter the destination of succession before written, as to settle the above estate upon a younger daughter in preference to an elder daughter, or to pass by such a daughter altogether, and to settle the estate upon the presumptive heir-male’ descended of certain favoured heirs.
On the death of Alexander Farquhar, his daughter Miss Jean Farquhar succeeded to him, and made up titles as heir of tailzie and provision. She was married, and, on her death, left a son, Colonel Gray Farquhar, who also made up titles as heir of entail. He died, leaving one son, John Gray Farquhar, and two daughters. The son made up titles as heir of tailzie, and died without issue. His eldest sister, Miss Margaret Gray Farquhar, was thereon, in 1836, served heir of tailzie and provision to him, and was infeft. In 1837, Miss Jane Gray Farquhar, the youngest sister, raised an action against her sister, and the other heirs of entail, concluding for reduction of her sister's service and infeftment, and also for declarator that the succession having, in terms of the foresaid disposition and deed of tailzie, ‘opened up to the heirs whatsoever of the said Jean Farquhar, and under that character to the heirs-portioners of the late John Gray Farquhar, the fetters imposed by the said taillie have now become inoperative, and the pursuer and the other heir-portioner are entitled to possess and enjoy the estate in fee-simple, free from the restrictions and limitations imposed by the said deed of taillie, and to sell, alienate, or dispose of the said lands and others in any manner the pursuer and her co-heir-portioner may think proper, and that the defenders, or any of them, have no claim against the pursuer, in respect of any such alienation or disposal of the same.’
Miss Margaret Gray Farquhar lodged defences, upon which the record was closed, and cases were ordered. The defender pleaded, 1st, That, according to the true meaning of the destinations viewed in connexion with the whole structure of the deed, heirs-portioners must be held to have been excluded. The question thus arising was not as to the import of any of the clauses imposing fetters, which are unfavourably viewed, and in which mere intention is disregarded. It arose between heirs, as to the terms of a gratuitous destination; and whether that destination was tailzied or not, the true meaning and intention of the granter ought to be regarded in determining what parties he had chosen to call to his succession.1 It was only after having determined this, that the ulterior and subordinate question arose, whether fetters had been effectually imposed on such parties; in which last question alone it was, that mere intention was of no avail.
But if the meaning and intention of the testator could be looked to, for construing the terms of his destination, the import of that destination was to exclude heirs-portioners. This was apparent from various parts of the deed, especially a clause...
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