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Isobel and Mary Wellwoods v Sir Charles Preston and Others, Trustees of the late Robert Wellwood. [1797] Mor 15466 (31 May 1797)
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[1797] Mor 15466
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[1797] Mor 15466
Subject_1 TAILZIE. Subject_2 SECT. II.
Institute.
Isobel and Mary Wellwoods v. Sir Charles Preston and Others, Trustees of the late Robert Wellwood
Date: 31 May 1797 Case No. No. 72.
A destination in an entail being to the granter, “for his life-rent use only, during all the days of his life time, and failing of him by decease, to his nephew in fee,” the latter was found to be a disponee or institute, not an heir of entail, although the restricting clauses were directed against “him and the other heirs of entail.”
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The circumstances giving rise to this case have been stated in the above report, 23d February, 1791, No. 70. p. 15463. It appears from that report, that the Court then found that Robert Wellwood was a disponee or institute, not an heir of entail; and that as such he was not subjected to the fetters of the entail made by Henry Wellwood.
Isobel and Mary Wellwoods, substitutes under an entail, after Mr. Wellwood's death, brought a reduction of the decree against his trustees.
The pursuers were called in the former action; but they were then minors, and they alleged that as no appearance had been made for them, it was still open to them to get the judgment set aside.
The Lord Ordinary took the cause to report, on informations.
The Court thought the former judgment right on the merits, and therefore had no occasion to decide on the competency of the action.
The Lords assoilzied the defenders.
Lord Ordinary, Glenlee.Act. Turnbull.Alt. Hume.Clerk, Home.
Fac. Coll. No. 30. p. 69.
