Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.

Heirs of Stewart of Phisgil, Competing

1743, June 4,8.
Case No. No. 20.

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Justice-Clerk seemed to think the exclusion of Agnes Stewart in the tailzie 1719 had no effect by the law of Scotland; but all the rest that spoke, particularly Arniston, thought that where there was a destination of succession to heir-male or heir-of-line with an exclusion of a particular person, that was a virtual institution of the next. Arniston observed in this case, that as to the wife's estate, there was no obligation upon the husband, but a conveyance and destination by the wife, by which the husband was made fiar; and the question was, Whether he had powers to alter the destination?—that he could not alter so as to prefer strangers, and doubted much whether he could even prefer the heirs-male of the marriage to the heirs-of-line. Kilkerran thought that quoad the conquest he had power;—but without putting a question, we found that Phisgil could not prefer his own daughters to his son's daughters, and therefore reduced, 4th January 1743.—8th June, The Lords nan. con. adhered, but with a further addition of finding the entail inconsistent with and in fraudum tabularum; which we did at the pursuer's motion.