Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 TAILYIE

Halket and Wedderburn
v.
Halket

Date: 27 November 1761

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Sir Peter Halket held his estate of Pitfirran under two deeds, of which one was a strict entail effectual under the Act 1685: the other was a marriage settlement. On account of the unfortunate situation of his eldest son, who was an idiot from his birth, Sir Peter made a deed passing by him who was his undoubted heir, both by the tailyie and the marriage settlement, and settling his estate on the next heir. But, in a process for reducing this deed, at the instance of the eldest son and his curator, “the Lords found, That Sir Peter had no power so far to alter the tailyie of Pitfirran as to pass by his eldest son Peter, though a natural idiot from his birth, and to settle it upon his second son ; therefore they reduced it.” But this decree was reversed on an appeal; because it was held that, in this circumstantiated case, the settlement by Sir Peter was not a contravention on the statute or entail, but a rational act, agreeable to the intendment of both.