An heir of provision, who succeeded as nearest heir at the time the succession opened, was obliged to denude on the existence of a nearer heir, though the entail contained no denuding clause in that event.
Click here to view a pdf copy of this documet : PDF Copy
Neil M'Kinnon had, in the year 1731, disponed the estate of M'Kinnon to John M'Kinnon younger, and the heirs-male of his body; whom failing, to the Heirs-male to be procreated of the body of John M'Kinnon elder; whom failing, to John M'Kinnon tacksman of Messinish.
A few years after, John M'Kinnon younger died, but without heirs-male of his body; and at that time there were no heirs-male of the body of John M'Kinnon elder; for which reason John M'Kinnon tacksman of Messinish served himself heir to John M'Kinnon younger, and took up the estate.
After this, in the year 1753, John M'Kinnon elder had a son named Charles.
The tutors of Charles brought an action against John tacksman of Messinish, to denude of the estate in favour of Charles.
Pleaded for John of Messinish; Ever since the decision Lord Mountstewart against Sir James M'Kenzie, 2d January 1708, voce Succession, it had been a point fixed in the law of Scotland, that the nearest heir to the deceased at the time might serve heir to him, notwithstanding the possibility of a nearer one; and in consequence of that it follows, that as the entering heir is a modus acquirendi dominii, it must be perpetual in its effects, and no contingency happening afterwards will overturn it.
Answered for Charles; By the disposition, the estate was plainly to be in the heir-male of the body of John the elder, upon the failure of heirs-male of the body of John the younger; but as, when this last event happened, the law, to avoid the inconveniency of leaving the fee in pendenti, had allowed it to be vested in the nearest heir for the time, so, when a nearer, the true heir, appeared, the inconveniency of leaving the fee in pendenti ceased, and the original disposition was enabled to have its effect. Vide decision 13th November 1707, George M'Kenzie against Lord Mountstewart, voce Succession; and Corehouse against Wier, cited in Bruce against Melville, 22d Feb. 1677, voce Succession, and Stair, B. 3. T. 5. § 50.
‘The Lords found, That the pursuer has right to the estate of M'Kinnon from the time of his birth; and that the defender is obliged to denude thereof in his favour.’
Reporter, Justice-Clerk.Act. Ferguson.Alt Lockhart.
Fac. Col. No 204. P. 302.*** Lord Kames reports this case:
In the memorable case M'Kenzie contra Lord Mountstewart, abridged), See Synopsis.) under the title Succession, it was found in the first place, That the heir in existence when the succession opens is entitled to enter, notwithstanding a nearer in hope; and in the next place, That the heir thus served is bound to denude in favour of the nearest heir when he exists. This last was again found in the present cause; and the reasoning follows: To clear the case, a preliminary question was stated, namely, in a destination of succession what is precisely intended by the clause quibus deficientibus. Is the person substituted in that event entitled to enter when there is no nearer heir in existence; or must he have patience till the whole persons called before him be exhausted? The latter is no doubt the natural construction; for a man must be whimsical who would chuse to have the succession to his estate governed by chance. A man for example, dies leaving a daughter born, and a son in utero. He certainly intends not that the daughter in this case should succeed more than if he had survived the birth of his son. According to this construction, there is no place for a substitute while there is a nearer in hope, though not existing. And the same rule, founded on the same presumption, obtains also in successions ab intestato. This rule, however, must yield to the constitution of the feudal law. A superior is entitled to have a vassal, and if none offer, he is entitled to have back his land. Hence it is, that with a view to the superior, and not the point of right, the next heir in existence when the succession opens, is entitled to serve. But then, he can be considered in no other light than as a fiduciary heir, holding the estate for behoof of the nearer heir. Upon the principles of the feudal law, he is entitled to the rents for his service while he acts as vassal; but he is not proprietor in any view so as to have the power of alienation or of contracting debt. For he is in effect but a trustee; and in that character he is bound to surrender the estate to the nearer heir. See Succession.
