Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

William Graham, Senior
v.
John Coltrain

Date: 9 June 1743

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This case is reported by C. Home, p. 381. (Mor. p. 13010.) Lord Kilkerran's note of it is as follows:

“January 5, 1743.—On report of the Lord Arniston, the Lords repel the objection to the pursuer's title, and find that John Stewart, the maker of the entail, could not settle the estate provided in the contract of marriage, to the heirs of the marriage, so as to prefer his own daughter Elizabeth, and her issue, to Agnes Stuart, the heir of line of the marriage, and therefore sustain the reasons of reduction of the deed of entail, and reduce and decern.”

“On advising this case, some of the Lords gave it as their opinion, that it was in the father's power to prefer his second son, deceased, notwithstanding that by his contract of marriage his estate was provided to the heirs of the marriage. But as others did not concur in that opinion, so there was no occasion for an interlocutor upon it; all agreeing that the father could in this, not prefer his own daughter, or his other extraneous heirs male, to his eldest son's daughter, and which by the deed under reduction, he was considered to have done purely by his own act, the substitution of his daughter, the defender's mother, and of the other substitutes being guarded by prohibitory and irritant clauses, which were not in the power of his son, whom he had instituted, to alter. The interlocutor was pronounced as above, to avoid determining with respect to the father's power of preferring his surviving second son to the daughter of the elder deceased.”