United Kingdom House of Lords Decisions

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Cite as: [1771] UKHL 2_Paton_252

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SCOTTISH_HoL_JURY_COURT

Page: 252↓

(1771) 2 Paton 252

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

(M. 5279; Brown's Sup. 848, et 904.)

No. 61.

Charles M'Kinnon, Esq. and his Guardians, Appellants

v.

Sir Alexander Macdonald, Bart., John MacKenzie, his Trustee, and Lieutenant John Mackinnon, Respondents

House of Lords, 25th February 1771.

Subject_Succession — Substitute — Rights of Do.—

A Sale by an heir-substitute coming into possession as nearest heir at the time of the succession opening, cannot be set aside by a nearer heir born sometime afterwards, of a second marriage.

For full report of this case, see Morison, p. 5279.

The question arose in the following circumstances:— An estate was conveyed to the eldest son of John Mackinnon,

Page: 253↓

an attainted party, whom failing, “to any other son or sons of the body of the said John Mackinnon, the father, (attainted person,) according to their seniorities; whom failing, to John Mackinnon of Missinish.” The eldest son died without issue, and the attainted person, although then alive, having then no other sons in existence to take the estate in virtue of the above destination, Mackinnon of Missinish, as specially substituted therein, served heir, was infeft, and took possession. Some time thereafter, the attainted father married a young lady, and had two sons by the marriage, who were nearer heirs; but, in the interval, Mackinnon of Missinish had sold the estate. The question of law, in these circumstances, for the decision of the Court was, Whether an heir-substitute in possession of, and infeft in, the estate, but whose title was defeasible or determinable by the birth of a nearer heir, could sell the estate, and so disappoint his succession? Held, by the whole Court of Session, that as he was the nearest heir in existence at the time of the succession opening, he was entitled to be served heir of provision, and to take possession of the estate, and this absolutely, without any restraint against selling, unless such restraint were imposed by the deed; and sustained the defences against reducing the sale.

Against this judgment appeal was taken to the House of Lords.

After hearing counsel, it was

Ordered and adjudged that the appeal be dismissed, and that the interlocutors therein complained of be, and the same are hereby affirmed.

Counsel: For Appellants, Ja. Montgomery, Al. Forrester.
For Respondents, Al. Wedderburn, Tho. Lockhart, Ar. Macdonald.

1771

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