Earl of Mar v. Earl of Kellie

Subject_1 Entail Subject_2 Succession Subject_3 Destination. Facts: By deed of entail certain lands were destined to “A and the heirs-male to be procreated of her body, whom failing, to the heirs whatsoever descending from her body.”

Held that the expression “heirs-male” must be construed to imply that the whole class of “heirs-male” should be exhausted before the class “heirs whatsoever” could claim under the destination.

The pursuer brought this action to have his right to the Mar estates declared preferable to that of the defender.

“ Note .—In the year 1866, on the death of John Francis Miller Earl of Mar and Kellie, without issue, the defender's father, Walter Coningsby Erskine Earl of Kellie, was served nearest and lawful heir-male of taillie and provision in general to him to the Earldom or estates, which form the subject of the present action.

This service was expede under and by virtue of the disposition and deed of entail dated 6th January 1739, and registered in the register of tailzies 10th December 1741 (on the construction of which the questions raised by the present action depend), executed by James Erskine of Grange, Esq., and Mr David Erskine of Dun, one of the Senators of the College of Justice.