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A father assigned an heritable bond of 6000 merks to his children, 4000 merks to Robert, and 2000 merks to William and Janet; and, in case of Robert's decease, providing his part amongst the rest equally. Janet having died before Robert, and Robert having also died without children, William, as heir to Robert, claimed the defunct's share, upon this ground, that Janet being substituted to Robert, without mention of her heirs, and having died before him, she never had right, and her substitution became void, and her heirs not being called in the substitution, since they could not have right, but as coming in Janet's place, the substitution was also void as to them. On the other hand, it was argued for Janet's heirs, That Janet being the last person called in the substitution, the same place that she herself would have taken up, if alive, must her heirs take up, now that she is dead: Janet was called preferrably to Robert's heirs, and would have excluded them, so must her heirs, since it is not pretended that any person is interjected betwixt them. The Lords preferred the heirs of Janet, and found, That they had right as heirs of provision to Robert, and that they ought to be served to him, and not to Janet, who never had right herself, having died before she was or could be heir to Robert.
