Where an entail is in favour of heirs-male, found, that upon failure of heirs-male, the right devolves to the King as ultimus hæres, and not to the heirs of line.
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William Tenant, skipper, having obtained a gift of ultimus hæres of the lands of Ligtonshiells, as falling to the King by the decease of James Tenant without heirs-male, and thereupon having pursued a declarator against the heir of line; alleged for the defender, that the lands did not fall under the gift of ultimus hæres, because James Tenant, by a minute of contract of marriage with the Laird of Drum's daughter in the year 1634, was obliged to obtain himself infeft in all lands wherein John Tenant his father was infeft, and being infeft, to infeft the heir of the marriage in the same; and albeit, by a posterior contract in the year 1637, wherein John Tenant the father was party contractor, the lands were provided to the heir-male of the marriage, which failing, to the said James Tenant, his son, and his other heirs-male, yet James Tenant, by the first minute of contract, being obliged to provide the lands to the heirs of the marriage in general, he could not by any posterior contract restrict the same to the heirs-male; the heirs of line being by the first minute of contract stated creditors to James the father, he could not make any alteration by the second contract to their prejudice; and albeit, James the father was not infeft the time of entering to the first minute of contract, yet John the father having disponed his lands to his son James by the second contract, so soon as the right came in his person, the benefice did accresce to his daughter by virtue of the first contract, especially seeing the contract mentions, that the parties were willing to perform such duties hinc inde then as of before the said marriage, and did relate to the first contract; and albeit John Tenant the father was not infeft in the lands of Ligtonshiells, yet the clause in the first contract, by which James the son was obliged to provide the heir of the marriage, in favour of the children of the marriage, all lands wherein John the father was infeft, and whereunto he had given right, did likewise comprehend the lands of Ligtonshiells, whereof he was then in possession as apparent heir, and albeit the first contract should have no effect, but that the second contract should only be the rule which provides the lands to the heirs-male, yet the daughter ought to succeed, seeing it cannot be supposed to have been the meaning of the parties to have preferred the ultimus hæres in prejudice to the heir of line; as also, the wife's tocher, who was mother to the heir of line, being employed for purging of the wadset of 5,000 merks that was upon the lands, it did fall under the clause of the first contract, by which James Tenant the son was obliged to provide the conquest of the heir whatsomever of the marriage. The Lords found, that either in an original feu, or posterior infeftment of tailzie, where the provision is in favour of the heirs-male, and not the heirs whatsomever, that the heir of line cannot succeed, but that the right does devolve to the King as ultimus hæres; and found, that the minute being in these terms to infeft in all lands wherein the father was infeft, whereunto he had presently right, were taxative and restrictive, and could not comprehend the lands of Ligtonshiells, wherein the father was not then infeft; and also found, that the obligement in the minute being conceived to obtain himself and his wife infeft in conjunct fee and life-rent, and the heir of the marriage, imported no more but a destination in favours of the heir, and could not hinder, but his father, who was not a contractor in the minute, having thereafter in a contract of marriage, and containing an addition of 1,000 merks of tocher, with several other alterations, provided the lands to the son and the heir-male of his body, which failing to the heirs-male and assignees whatsomever; and albeit, the son was fiar by the conception, yet he was not obliged to answer the destination in favour of the heir-male, neither were the heirs-male obliged to alter the former, albeit the minute had imported an obligement upon the son, not being obliged to fulfill obligements which were inconsistent with, and do evacutate the tailzie or succession: As also found, that albeit the tocher was applied for purging the wadset of 5,000 merks, which did affect the lands of Ligtonshiells, yet that did not make the lands in the person of the son to be conquest, but being provided by the contract of marriage aforesaid, was preceptio hæreditatis, so that albeit the son was obliged to provide the conquest to the heirs of the marriage, the obligement of conquest could not comprehend these lands.
Fol. Dic. v. 2. p. 401. Sir P. Home MS. v. 3.
*** Fountainhall's report of this case is No. 11. p. 2949. voce Condition.
