Carnegy v. Joseph [1915] ScotLR 370 (19 February 1915)

Carnegy v. Joseph [1915] ScotLR 370 (19 February 1915)

The terms 'heirs-male of my body' in the entail called in succession all heirs-male of the body, not just the heir-male at the entailer’s death. Upon exhaustion of the heirs whatsoever of the eldest son, the next heir-male (the second son) would have succeeded, but as he predeceased, his heirs whatsoever (including the female claimant) are entitled to succeed. The first condition in the entail was a recapitulation of the destination and did not alter the order of succession.

Citation
[1915] ScotLR 370
Parties
First Party: Charles Gilbert Carnegy; Second Party: Mrs Isabella Eliza Butter Carnegy or Joseph and Francis Edward Joseph (curator and administrator-in-law)
Jurisdiction
Scotland
Judgment Date
19 February 1915
Procedural Posture
Special Case (entail/succession) / Judgment of the Inner House, Second Division
Outcome
Judgment for the second party (Mrs Joseph).
Legal Topics
Entail, Heirs Male, Heirs Whatsoever, Interpretation of Destination Clauses, Preference of Males to Females in Succession
Succession Law Property Law Entail Heirs Male Heirs Whatsoever Interpretation of Destination Clauses Preference of Males to Females in Succession

Case Brief

Summary, issues, holding and outcome

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Parties

Charles Gilbert Carnegy

First Party

Mrs Isabella Eliza Butter Carnegy or Joseph and Francis Edward Joseph (curator and administrator-in-law)

Second Party

Procedural Posture

Special Case (entail/succession) / Judgment of the Inner House, Second Division

Legal Issues

  1. 1 Whether the first party (heir-male of the body of the entailer) or the second party (heir whatsoever of the body of the entailer's second son) is entitled to succeed to the estate under the deed of entail.

Ratio Decidendi

The terms 'heirs-male of my body' in the entail called in succession all heirs-male of the body, not just the heir-male at the entailer’s death. Upon exhaustion of the heirs whatsoever of the eldest son, the next heir-male (the second son) would have succeeded, but as he predeceased, his heirs whatsoever (including the female claimant) are entitled to succeed. The first condition in the entail was a recapitulation of the destination and did not alter the order of succession.

Court Disposition

Judgment for the second party (Mrs Joseph).

Orders

  • First question (first party's entitlement) answered in the negative.
  • Second question (second party's entitlement) answered in the affirmative.