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Robert Murray disponed his estate of Pulrossie, failing heirs of his body, “to and in favours of John and George Murrays, his brother's sons, and the heirs-male to be procreated of their bodies; which failing, to Sutherland of Clyne,” &c.; thereafter he goes on to appoint a division of the estate betwixt the two brothers, into unequal parts. George having died without heirs of his body, the question occurred betwixt his brother John and Sutherland of Clyne, which of them was substitute to him in his proportion of the lands. For Sutherland it was pleaded, That he was substituted to both the brothers in their separate rights, which was clear from the clause, “which failing,” in his favours; whereas there was no substitution in the tailzie of the one brother to the other. It was answered, The intention of this tailzie was to preserve an ancient family—“That Sutherland is substituted after the two brothers, and the heirs-male of their bodies,” and no otherwise; so that he can have no claim while an heir-male of either of their bodies is alive. The plain intention of the tailzier was to prefer both his nephews, and the heirs-male of their bodies, to Sutherland; which must imply a mutual substitution of the one brother and his heirs to the other brother and his heirs. The Lords found, That Sutherland could not be served heir to George during the life of the brother John, and the heirs-male of his body; and found, That John Murray may proceed in his service to his brother George. See Appendix.
