Scottish Court of Session Decisions

Subject_1 SUCCESSION.
Subject_2 SECT. I.

Succession in Heritage ab intestato.

Lady Clerkington
v.
Stewart

Date: 20 July 1664
Case No. No. 6.

If the defunct be the youngest brother, the immediate elder is both heir of line and of conquest.

Click here to view a pdf copy of this documet : PDF Copy

Lady Clerkington pursues the heirs of umquhile David Stewart, son to the Laird of Blackball, for the sum of 200 merks due to her husband. It was alleged for Walter Stewart, brother to the defunct, defender, no process, because the heir of line of the defunct David Stewart was not called, in so far as David, being the only son of the second marriage, and having neither brother nor sister of that marriage, his heir of line could not be Walter Stewart, youngest son of the first marriage, but the heir of the eldest son of the first marriage; according to Craig's opinion, De successionibus.

The Lords found, That in this case, Walter, as the next immediate preceding, was both heir and of conquest, and not the eldest brother.

In this process, it was also alleged, that this sum was a clandestine fraudulent paction, contrary to the contract of marriage, betwixt the defunct David Stewart, and the defender's daughter, whereby 10,000 merks being contracted with her in tocher, and Blackhall granted a proportionable life-rent thereto; yet underhand, without Blackhall's knowledge, his son was induced to give bond for this 2000 merks, to take away 2000 merks of the tocher: And it was remembered by some of the Lords, that in the like case, a discharge of a part of a son's provision granted to his father, contrary to his contract of marriage, was found fraudulent and null by exception.

The Lords did not decide, but rather desired the parties should agree, but thought this was an unfavourable act of dangerous consequence.

Fol. Dic. v. 2. p. 398. Stair, v. 1. p. 220.