Scottish Court of Session Decisions

Subject_1 HEIR APPARENT.
Subject_2 SECT. III.

Rights and powers of an apparent heir, as to removing tenants, uplifting rents, selling the predecessor's estate, &c. - - To whom rents unuplifted during apparency belong.

Laird of Wedderburn
v.
Longformacus

1685. March
Case No. No 14.

Found that an apparent heir might pursue for teind-duties, of which his predecessor died in possession.

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The Lords found an apparent heir might pursue for teind duties, whereof his predecessor died in possession, seeing the decreet will secure the payment. But this seems to be an erroneous decision, and a consequence of the decisions finding current mails and duties to belong to apparent heirs, and to fall under their testaments; which decisions are irregular, as Castlehill observes, Pract. tit. Aires, No 81. For though tenants paying their rents to an apparent, are excused, the apparent heir, not being nomen juris, should have nothing but his aliment, and cannot transmit any rents to his executors; and in a competition, the next heir will be preferred to the former's creditors, not being creditors for his aliment. And the question in the Lady Tarsappie's case, anno 1662, No 9. p. 5206. was only about satisfaction to her for the apparent heir's aliment, whom she entertained till his death; and it was expressly found, That unuplifted mails and duties did not fall under an apparent heir's executry, but were in hæreditate jacente, and belonged to the person served heir to the defunct last vest and seized; Jan. 1683, Ballantyne contra Bonnar's relict*; and in Balgony's case, February 1688, No 15, infra.

Fol. Dic. v. 1. p. 358. Harcarse, (Aires Gestio, &c.) No 60. p.11.