Date of Decision: 19 Jan 1804
Abstract: This case involved a question of entail: if an entail provision states that heirs who succeed to a title of Peer forfeit their claim to the estate, does this provision apply to a peer succeeding as heir to the estate? In 1741, John, Earl of Wigton executed an entail of his estates of Biggar and Cumbernauld in favor of himself and his male heirs. Included in this entail was the provision that any heir who succeeded to a title of Peer would forfeit his claim to the estate. The Earl of Wigton died with no sons and one daughter, Lady Clementina Fleming, who married Charles, Lord Elphinston. The entail passed to the Earl's brother, Charles Fleming. After Charles's death in 1747, Lady Clementina Elphinstone served as heir of tailzie and provision to her father. In 1788, she executed a deed revoking the 1741 entail so that her oldest son John could take possession of the estate despite his peerage title. John preceeded his mother in death, leaving two sons, the oldest, John, now Lord Elphinstone, and Charles Fleming. Upon the death of his father, Lord John Elphinstone took possession of the estate according to his grandmother's 1788 deed, prompting his bother Charles to bring an action of declarator claiming that since Lord Elphinstone was a Peer, Charles was the rightful heir of tailzie and provision for the estates.
Subjects: Tailzie

Published Report

William Morison, The Decisions of the Court of Session (1811), 15559 Scots Digest, 1800-1873, 2: 52 "Shaw's Digest." Bell and Lamond, Digests of Cases Decided in the Supreme Courts of Scotland, 563

Litigants

Pursuer:
Charles Elphinstone Fleming, Brother to Defender
Defender:
Lord John Elphinstone, Brother of the Pursuer

People or Organizations Associated with Case

Advocate for Pursuer:
Hay
David Cathcart
Advocate for Defender:
Henry Erskine
Ar. Campbell
Agent:
Robert Hill, W.S.
James Gibson, W.S.
N. Hill, W.S.
Clerk:
Menzies
Named in case documents:
Lady Clementina Fleming Elphinstone, Grandmother of the Pursuer and Defender.
Lord Ordinary:
William Baillie, Lord Polkemmet

Organizations