Scottish Court of Session Decisions

Subject_1 SUBSTITUTE AND CONDITIONAL INSTITUTE.

The Nearest in Kin of Mary and Janet Walkers
v.
The Nearest in Kin of William Walker

Date: 7 December 1744
Case No. No. 19.

If the substitute die before the institute.

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Robert Walker, tenant in Bedlormy, settled all his effects, being moveable, upon William his brother, and the heirs of his body, with a provision, that if William should die without heirs of his body, the sum of 1500 merks, at which the effects disponed were estimated, should fall and pertain to Janet and Mary Walkers, and others therein named, in certain proportions.

It happened, that Mary and Janet died before William; and, after William's death, without issue, a process was brought at the instance of the representatives of Mary and Janet, against the representatives of William, the disponee, for the said Mary and Janet's proportions of the said sum. To whose claim it was objected, That the provision to Mary and Janet was conditional, in case they survived William; and as they, not having survived him, could not take, neither could their heirs, because they were not at all called.

But the Lords found, “That Mary and Janet were substitutes to William, and found, that their heirs, although not expressly called, had right to the subject, upon their making up proper titles.”

Fol. Dic. v. 4. p. 303. Kilkerran, (Substitution) No. 2. p. 522.

*** D. Falconer's report of this case is No. 13. p. 10328. voce Personal and Transmissible.