Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Thomas Kennedie
v.
Colane, his Eldest Brother, and his Tutors

Date: 8 July 1670

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The deceased Laird of Colane having made a disposition of the lands of Carraway to Archibald, then his second son, with this provision,—That, in case he should succeed to his elder brother, and to the estate of Colane, that then he should denude himself in favour of Alexander, his third son, who was appointed to succeed to him in the said lands, notwithstanding of any law to the contrary; the said Archibald having succeeded to the estate of Colane, by the decease of his elder brother, and Alexander, who was substitute to him in the lands of Carraway, being likewise deceased; Thomas Kennedie, the fourth brother, being served heir to Alexander, did intent action against the said Archibald, for resigning the said lands of Carraway in his favours.

It was alleged for the defenders, That he could not be decerned to resign in favours of the said Thomas; because, by the provision of his right, he was only obliged to resign in favours of Alexander, without mention of his heirs. 2d. Albeit there had been mention of his heirs, yet the defender himself being heir of conquest, the right did return to himself, and not to Thomas, who was only heir of line.

The Lords having considered the provision in the disposition made to Archibald; albeit it did appear that the intention of the father was, That Archibald, the second son, succeeding to the estate, should denude himself of these lands, in favours of Alexander; or if he died, in favours of any other younger brother; yet the question being anent lands and heritage, and betwixt minors, they continued to give their interlocutor until they should be majors: But, in the meantime, ordained the profits of the lands of Carraway to be paid to Thomas, by the tutors, for his aliment,—they not being above 1000 pounds Scots of yearly rent.

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