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The estate of Mackinnon stood disponed to John Mackinnon younger, and the heirs-male of his body; whom failing, to any other son of the body of John Mackinnon elder; whom failing, to John Mackinnon, tacksman of Mishinish. On the death of John Mackinnon younger, without issue-male, Mishinish served as nearest and lawful heir-male of provision, and was infeft. Afterwards a son being born to old Mackinnon, the tutors of the child brought an action against Mishinish, to denude of the estate in favour of their pupil, Pleaded for Mishinish, That he being nearest heir to the deceased at the time, the possibility of a nearer heir's existence was no bar to his service; and as the entering heir is a modus acquirendi dominii, it must be perpetual in its effects, and no contingency happening afterwards will overturn it. The Lords found, That the heir-male of old Mackinnon had right to the estate from the time of his birth, and decerned the defender to denude in his favour.
Fol. Dic. v. 4. p. 304. Fac. Coll. Sel. Dec.
*** This case is No. 20. p. 6566 voce Implied Obligation.
