Scottish Court of Session Decisions

Subject_1 SERVICE OF HEIRS.

Mrs Seton of Touch
v.
Sir Henry Seton

1749, June 9.
Case No. No. 5.

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Seton of Touch's estate being by the investitures to heirs-male, Archibald Seton, in his contract of marriage 1721, devised it to the heirs whatsoever of that marriage, and died leaving a son and daughter. His son's tutors served him heir of the ancient investitures, on which he was infeft and died. His sister could not serve heir of the investitures; and her lawyers doubted whether the father's procuratory of resignation could lawfully be executed after the fee was vested in the son by the service, and therefore raised reduction of the son's service and infeftment on minority and lesion against Sir Henry Seton the heir-male, which Dun reported to us for advice, though he declared he had no difficulty to reduce. I thought, though the procuratory could not be executed, and that the pursuer should be forced to adjudge in implement from the heir-male, that was no sufficient qualification of lesion to the minor, to induce us to reduce his infeftment, and make him die in the state of apparency. The President was of my opinion, but said further, that it was no question at all that the procuratory might be yet executed, as was done every day, and particularly by himself, and that judging otherwise would make a great confusion in numbers of land-rights in Scotland. There was but a short memorial given in to us, and we agreed not to receive it in that shape for advice, nor at all, if the pursuer should insist for it without full informations; and the President advised Mr Ferguson for the pursuer not to insist for it.