Alienation in favour of the nearest heir does not infer recognition.
A brother was not accounted nearest, where the party being young, and married, was in spo to have children.
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The King's Advocate, and Mr David Mackgill, his son, as donatar to the gift of recognition of the lands of Culzean, pursued the Earl of Cassilis and Sir Thomas Kennedy, tutor of Cassilis, to hear and see the L. 20 land of Culzean decerned to come under recognition, by reason of alienation made thereof by Gilbert Earl of Cassilis, to the said Sir Thomas, his brother-german, they holding ward of the King. Excepted, That they fell not under recognition by the reason foresaid, because, at the time of the making of the said alienation, the said Sir Thomas was heir-apparent to the Earl, he having no lawful children procreate of his own body; and therefore it could not be counted an alienation tanquam extraneæ personæ, seeing he was in the mean time hæres successurus. Replied, That the Earl was all the time married, and so habebat sub spe hæredes de suo corpore: Likeas, he thereafter procreated children that succeeded him, so that his brother could not be accounted his nearest and apparent heir, as long as he was in hopes of children, being young and married. The Lords repelled the exception, and thought Sir Thomas could not be counted my Lord's nearest heir, in respect of the marriage, and children procreated thereafter.
FoL Dic. v. 2. p. 315. Spottiswood, (Recognition.) p. 251.*** Colvil reports this case:
The King's Advocate, and Mr David M'Gill, his son, as donatar to the gift of recognition of the lands of Culzean, to be decerned to come under recognition, because there was alienation made of the said lands, which were holden ward of the King's Majesty, by Gilbert Earl of Cassilis to Sir Thomas Kennedy his brother-german. It was excepted, That the lands fell not under recognition, because of the disposition made to the said Sir Thomas; because, at the making thereof, the said Sir Thomas was his nearest and apparent heir, he having no lawful bairns procreated of his own body, and so the alienation made to him, who was heir before, to succeed to him, could not be accounted tanquam extraneæ personæ. To this was answered, That the said Earl, at the making of the said alienation, was married, and so being married habebat hæredes de corpore suo sub spe; and so his brother-german could not be accounted to be his nearest and apparent heir, so long as he is joined in marriage, and had any hope to get bairns procreated of his own body, as he thereafter procreated bairns, and the Earl of Cassilis that is present Earl. The Lords found that the said Sir Thomas, at the time of making the alienation, could not be accounted his nearest apparent heir, in respect of the marriage, and the bairns procreated thereafter.
