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In Robert Collison and Moir's case, it was debated in præsentia between a sister-german to a defunct and his brother consanguinean, and their descendants, which of them was preferable in the succession to his heritage; the succession was to Mr. Robert Petrie, Provost of Aberdeen. Hope, Minor. Pract. Tit. 2. brings them in equally in moveables, but prefers the sisters-german in land, because ex utroque latere, et ob duplicitatem vinculi. The President thought here, that the defunct not being infeft, they were alike to the communis stipes, and was therefore for preferring a brother and his issue, who always in pari casu excludes sisters; and search having been made in the records of the Chancery, it was alleged, that services and retours were found where he had been preferred; and Novel. 118. favoured it, so that at last the descendants of the brother were allowed to serve, but prejudice to the other party to quarrel the same, as accords.
Fol: Dic. v. 2. p. 398. Fountainhall, v. 1. p. 492.*** Harcarse reports this case:
In the competition for the right of succession betwixt the nephew of a consanguinean brother, and the nephew of a german-sister to the defunct, it was alleged for the consanguinean nephew, that regularly the masculine line excludes the feminine; and though by our custom, drawn from the civil law, the german sister is preferred to the consanguinean brother, yet that principal is but personal to the sister competing, when both bloods concur in the same degree, and belongs not to her descendants.
Answered for the German nephew: Albeit a woman is termed ultima suæ familiæ, yet by our law and custom, the representatives of a sister-german exclude the masculine consanguinean line.
The Lords ordained the point to be heard in presence, January, 1688, Captain Collison against Moir. The german nephew declining to debate, the consanguinean nephew took out brieves and served.
