A subject, by original rights, had been granted to heirs male; whom failing, to the eldest heirs female without division. Sub-feus were granted to heirs whatsoever. Both kinds of rights came ultimately into the person of one proprietor, who dying without heirs of his own body, it was decided among his sisters, that the after-conveyances were, by prescription, now the rule of succession.
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In the year 1555, the Commendator of the Priory of St Andrews, by a feu-charter, disponed some acres of land to certain persons and their heirs male; which failing, to their eldest heirs female without division, and assignees.
Some of these acres were afterwards purchased from the original feuars, and the conveyances were made to the purchasers and their heirs whatsomever, upon which base infeftment followed.
These rights came at length in the person of Mr Duncan, who dying without heirs of the body, there arose a question amongst his sisters, Whether his succession should be determined by the original feu-charter, of by the after-conveyances?
It was alleged for the Earl of Kelly, as assignee to the youngest sister, That by the posterior dispositions upon which Mr Duncan was infeft, and had possessed the lands, the original destination was altered in favours of heirs whatsomever.
Answered for the eldest sister and her husband, That these dispositions being but private conveyances from vassals, upon which only base infeftments had followed, they could not be deemed an alteration of the original destination by the superior, who had done no deed confirming these posterior rights; and since the superior had so anxiously provided against splitting his feu, heirs whatsomever in the latter conveyances were to be understood the heirs of investiture, and such as the superior could have been obliged to receive as vassals in the subject disponed, viz. heirs-female without division.
Replied for the Earl, That by heirs whatsomever are always, understood heirs at law, and consequently, where the succession devolves on females, heirs-portioners; and since the later dispositions, on which Mr Duncan was infeft, were taken to heirs whatsomever, he showed his intention that his heirs at law should succeed him, as much as if he had disponed his lands to all his sisters equally, in which case, they, as creditors, might have adjudged, and so obliged the superior to receive them. As to what prejudice the superior may sustain from the original destinations being altered, that was jus tertii to the defenders.
The Lords found it proved by the writs produced, that the destination was altered in favours of heirs and assignees whatsomever.
Act. Graham, sen.Alt. Hay & Murray.Clerk Justice.
Edgar, p. 181.
