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In the mutual reduction pursued by Johnston against Watson, and Watson against Johnson of two services, the one being of the eldest brother's son, as heir to the youngest brother's son, and the other service being of the mid-brother's oye as heir to the youngest brother's son, the Lords found that the subject matter in debate, being heritage in the person of the defunct, who was the youngest brother's son, his right being a disposition from his father, and so was præeptio hæreditatis, that the mid-brother's oye had right, and not the descendants of the eldest brother, in regard they found that the heritage of a youngest brother's son did ascend and belong to the middle or immediate elder brother, and did not ascend per saltum to the eldest brother.
Fol. Dic. v. 2. p. 398. Pres. Falconer, No. 9. p. 4.*** Fountainhall reports this case:
The case William Watson and Johnstons, against Johnston and Doctor Hay, being this day advised, the Lords “found there were three brothers, and Patrick to be the eldest; and found, what lands the youngest conquessed became heritage when they once descended to his son; and therefore, that the middle brother and his posterity, (because he was immediate elder,) succeeded to the said youngest brother's son, and that it did not go to the eldest of all the three, though he was the representative of the communis stipes their father.”—Craig, Lib. 2. De Successione differs from this.
