Mackay v Campbell's Trustees
| Jurisdiction | Scotland |
| Judge | Lds. Moncreiff,Cuckburn,Lord Glenlee,Lord Medwyn,Lord Justice-Clekk |
| Judgment Date | 13 January 1835 |
| Court | Court of Session (Inner House - Second Division) |
| Docket Number | No. 86. |
| Date | 13 January 1835 |
Lds. Moncreiff & Cuckburn, Lord Glenlee, Lord Medwyn, Lord Justice-Clekk
Succession—Clause of Return—Marriage Contract—Passive Title.—
In 1751, Archibald Campbell, proprietor of the estates of Ormaig and Blairintibbert, in Argyleshire, became a party to the contract of marriage between his eldest daughter Katharine, and John Campbell, brother to Campbell of Lossit, whereby reserving his own liferent as to both properties, and his wife's, should she survive him, as to one of them, he sold, alienated, and disponed these lands, ‘with and under the reservations, burdens, provisions, and conditions aftermentioned, to and in favours of the said Katharine Campbell and the said John Campbell, her future husband, and the longest liver of them, in conjunct fee and liferent, but for his liferent use allenarly, and, after their decease, to the heirs-male to be lawfully procreat of their bodies of the said intended marriage; which failzieing, to the lawful issue, in the order aforesaid, to be procreat of her body, excluding all other heirs-portioners, and succeeding without division, when it shall happen heirs-female to succeed; which failzieing, to return to the said Archibald Campbell, his heirs and assignees whatsoever.’ On this contract infeftment was duly taken in favour of Katharine Campbell and her husband.
Archibald Campbell had no sons, but a large family of daughters, said to have been fourteen in number, of whom it was admitted that three survived him. These were all married, Katharine, as above-mentioned, to John Campbell, Isobel to the Rev. Mr L'Amy, minister of Kilmartin, and Jane to Hugh Mackay, tacksman of Laggan. Katharine had two children, James and Elizabeth (the late Mrs M'Kinnon Campbell), who both survived her. Isobel died without issue, and June left the late Major Alexander Mackay, and the pursuer, Miss Flora Mackay. On the death of Katharine, her son, James, made up titles as heir of provision to her under her contract of marriage, and was infeft in the lands of Ormaig and Blairintibbert in 1790. He thereafter died without issue, and was succeeded by his sister, Mrs M'Kinnon Campbell, who obtained herself served heir of provision to him under the destination in the contract, and proceeded to make up titles to the properties separately, Ormaig being held of a subject superior, and Blairintibbert of the crown. As to Ormaig, she obtained a precept of clare constat from the superior, on which she was duly infeft in March, 1806. As to Blairintibbert, again she took out a precept from Chancery, of date February 19, 1806, containing the usual clause of limitation of the validity of the warrant to the next term. No infeftment, however, followed thereon till May, 1808, and in the instrument of sasine upon the infeftment then taken, the year both of the era and of the King's reign was written on an erasure. Mrs M'Kinnon Campbell died in 1822 without issue, having been predeceased by two sons, her only children. A few days before her death, she executed a mortis causa trust-deed of settlement in favour of the late Hugh James Rollo, W.S., as trustee for certain legatees and others, all strangers to her succession; and Rollo afterwards, in virtue of powers in the trust-deed, assumed as trustees the present defenders. On Mrs M'Kinnon Campbell's death, the late Major Alexander Mackay, son of Jane Campbell, expede a general service as Mrs M'Kinnon Campbell's heir-at-law, and thereupon. raised a reduction of her trust-deed, on the grounds that it was executed on deathbed, and that she was not at the time of a disposing mind. Pending this action, Major Mackay died, and his sister, the pursuer, Miss Flora Mackay, sisted herself as pursuer in his place, but ultimately judgment was pronounced in this Court, and affirmed in the House of Lords, repelling the reasons of reduction.1 Miss Mackay further made up a tentative title, by granting a trust bill, whereupon she was charged to enter heir to Mrs M'Kinnon Campbell in the lands of Ormaig and Blairintibbert, by the grantee in the bill, who thereupon led an adjudication, which he assigned to...
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Robertson v Hay-Boyd
...I have read through the series of cases in Morison's Dictionary, and I have read also Lord Medwyn's propositions in Mackay's case ( 13 Shaw 246), and particularly his second and third propositions. I doubt much whether, in view of the authorities, a clause of return can be valid if it is in......