James Marquis of Clydesdale, An Infant of Tender Years, By James Duke of Hamilton and Brandon His Father v Thomas Earl of Dundonald Et E Contra: HL 2 Apr 1726

Minor – A minor, though with consent of his curators, could not gratuitously alter the settlements of his estate.
Death-bed – Neither could he gratuitously alter them on death-bed.
Tailzie – A tailzie executed in 1716, not registered in the Register of Tailzies, sustained in 1725 as a title on which to serve heir of provision.
Return – A clause of return to the grantor of a deed alter failure of heirs male, did not disable the heir in possession gratuitously to alter in favour of has daughters.
Destination simple – Nor did a simple destination to heirs male in several deeds hinder this.
Prescription. – Base Infeftment – Haereditas Facens. – A base infeftment is taken by a son on dispositions from his father in 1653 and 1656. In 1680 the father, after the son’s death, resigns these lands by a procuratory of resignation, and takes new charters from the crown, under which the lands are held till 1725, without making up titles under the son’s base infeftment. The objection of prescription is repelled. An objection that though the base infeftment contained lands in two counties it was only registered in one, is repelled. And it is found that these lands bring still in haereditate jacente of the son, a title to them could only be made up by a service to him.
Apparent Heir – One passing by an apparent heir three years in possession not liable to implement such apparent heir’s gratuitous bond of tailzie.
Construction – A deed is executed, by which the grantor obliges himself and his heirs male, and of tailzie, provision, andc. upon failure of heirs male of his own body, and heirs male of the descendants of his body, to resign the same for infeftments to his daughters and the heirs male of their bodies without division, andc.; in a competition between the heir male of the body of his eldest daughter, and a person claiming as heir male or the defendants of his body, the former is preferred.

[1726] UKHL Robertson – 564, (1726) Robertson 564


Updated: 05 January 2022; Ref: scu.554228