Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION II.

Lucrative Successor post contractum debitum.
Subject_3 SECT. I.

The disposition must flow from the father. - The disponee must be apparent heir in the subject. - Effect of the disponee dying before his father. - Disposition in trust for behoof of the apparent heir. - What must be the nature of the subject disponed to infer the passive title? - Acceptance of the disposition sufficient. - Bonds disponed to the heir will be presumed to have been heritable, in order to infer the passive title.

Scot
v.
Boswell

1665. November.
Case No. No 110.

A disposition from one brother to another, makes not the disponee lucrative successor, seeing the disponer has hæredes propinquiores in spe.

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Lawrence Scot merchant, pursues David Boswell, brother's son to the deceased David Boswell of Affleck, as successor titulo lucrativo to his uncle for payment of a debt. It was alleged, Absolvitor, because brother's son is not nomen juris to make him represent his uncle, not being alioqui successurus; seeing his uncle might have had heirs-male of his own body to succeed to his tailzied estate, and that the defender's father was next to him, failing of children; so that, in effect, by the disposition, he was but as a stranger, not being apparent heir, nor otherwise to succeed, if the disposition had not been made. It was answered, That the estate being tailzied, and provided to the defender, who was eldest son of the brother, the only then next apparent heir of tailzie; it was equivalent and alike as if it had been disponed to the brother himself; and it was found in a case of the Lady Smeiton against her son this Laird of Smeiton, No 107. p. 9774, “That a disposition of the estate made to him by his grand-father (his father who was successurus for the time being on life,) made nevertheless the oye liable as successor.” Replied, That the case adduced was in linea recta, where none should succeed but the son or oye, which is not in this case, for Affleck might have had sons of his own body; so that neither brother nor brother's son could be said to be alioqui successuri.

The Lords found the brother's son not to be convenable as successor, in respect the disponer might have had succession of his own body; but prejudice to the pursuer to impugn the disposition as being made to a conjunct person in prejudice of creditors.

Fol. Dic. v. 2. p. 35. Gilmour, No 168. p. 119. *** Newbyth reports this case:

David Scot being a creditor to David Boswell of Auchinleck, after his decease pursues the three daughters of the first marriage for the sum of L. 1000 Scots and annualrents thereof, and their husbands for their interest, as representing their father David Boswell. The three daughters offering to renounce, it was alleged for the pursuer, They cannot renounce, because they behaved themselves as heirs to their umquhile father, in so far as, by their mother's contract of marriage with their father, it is provided, That in case there be no heirs-male procreate of that marriage, but only female, that then and in that case, the heirs-female should have no right to the said lands and barony of Auchinleck, nor to other lands which should happen to pertain to him the time of his decease, et ita est, they have renounced the estate in favours of the apparent heir-male or his son, and have received good deed therefor; and craved that they and the apparent heir may exhibit the contract of marriage, being in their own hands; and thereby the estate is fraudulently conveyed in prejudice of lawful creditors. In this pursuit, David Boswell, now of Auchinleck, who was apparent heir to James Boswell, brother to umquhile David Boswell, is likewise convened in this process. The Lords found that heirs-female renouncing their right to tailzied lands in favours of the apparent heir-male or his son, albeit they got good deed therefor, could not be pursued for their father's debt; and also, that a disposition of land made to the son of the apparent heir, the apparent heir being alive, could not, he such a title against the person, receiver of the disposition, as to make him liable passive for payment of the debt.

Newbyth, MS. p. 40.

*** Stair's report of this case is No 19. p. 3571, voce Discussion.