Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Thomas Kennedy
v.
Archibald Kennedy of Culzean

Date: 8 July 1670

Click here to view a pdf copy of this documet : PDF Copy

The Laird of Culzean having three sons, John, Archibald, and Alexander,—for a provision to Archibald, the second, dispones his lands of Corrowa, and others, with this provision, That, if John should die, and Archibald succeed to be heir, Archibald should denude himself of the lands in favours of Alexander; and, if Archibald wanted heirs of his body, Alexander should be his heir, notwithstanding of any law or custom to the contrary. Thereafter, a few months before the father's death, this fourth son; called Thomas, was born. John, the eldest, and Alexander, the third, are both dead, infants; Archibald falls to be heir, and so the condition exists, in which he was obliged to dispone to Alexander. Thomas enters heir of line to Alexander, and pursues Archibald to dispone the lands to him. It was answered for Archibald, That Thomas, as heir of line to Alexander, can have no right to this provision:—1st. Because the provision is only in favours of Alexander, without mention of his heirs. 2dly. Though it could be extended to Alexander's heirs, yet, it being no heritage to which Alexander could succeed, it is conquest, and would not descend to Thomas, Alexander's heir of line, but would ascend to Archibald, as heir of conquest to Alexander. It was answered for the pursuer, That, in this case, the meaning and intention of the father must be considered by his provision inter liberos, which is clear to have been, that Archibald should not have both his estate and these lands of Corrowa, but that the same should descend to Alexander; and, if Thomas had been then born, he would no doubt have provided, that, failyieing of Alexander, Archibald's portion should fall to Thomas; and, if he had declared that the lands of Corrowa should only belong to the heirs of line, it would undoubtedly have excluded the heirs of conquest. He has done the equivalent; for, having provided the lands to Archibald, and his heirs whatsomever, he does, by a posterior explicatory clause, declare, that, if Archibald died without heirs of his body, Alexander should be Archibald's heir therein, notwithstanding of any law or custom to the contrary; which can have no other meaning than that, notwithstanding by the law, John, as heir of conquest, would succeed to Archibald, wanting heirs of his own, yet Alexander, the younger, who would be heir of line, should succeed; which is as much as to say, that this provision should belong to Archibald's heirs of line, and not to his heirs of conquest; and, consequently, having made no mention of Alexander's heirs, he did also mean Alexander's heirs of line, who is the pursuer Thomas; and the case is so much the more favourable, that, if this failed, Thomas hath neither provision nor aliment. The Lords, considering that both parties were infants, and that, if Archibald should die, Thomas would get all, superseded to give answer anent the heritable right of succession until both parties were major; and, in the mean time, allowed Thomas to possess the profits of the lands, who had no aliment nor provision.

Vol. I, Page 691.