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Scottish Court of Session Decisions >>
Laurence Scot v David Boswel of Auchinleck. [1665] Mor 3571 (22 November 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor0903571-019.html Cite as:
[1665] Mor 3571
Where the Heir Male or of Entail is bound primarily; - or, bound to relieve the Heir of Line.
Laurence Scot v. David Boswel of Auchinleck
Date: 22 November 1665 Case No. No 19.
An heir-male who is obliged to relieve the heir of line, has not the benefit of discussion.
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Umquhile David Boswel of Auchinleck, being debtor to Laurence Scot in 1000 pounds, by bond; he pursues his daughters, as heirs of line, and David Boswel now of Auchinleck, his brother's son, as heir-male, or at least lucrative successor, by accepting a disposition of lands from the defunct, which were provided to heirs-male, and so being alioqui successurus. It was alleged for the said David, no process against him, till the heirs of line were first discussed. It was replied, and offered to be proven, that he was obliged to relieve the heirs of line.
Which The Lords found relevant.
It was further alleged for the defender, that he could not be convened as lucrative successor, by the foresaid disposition, because the time of the disposition he was not alioqui successurus, in respect that his father was living. It was answered, that albeit he was not immediate successor, yet being the mediate successor, the disposition was præceptio hæreditatis, and The Lords had already found that a disposition to an oye made him lucrative successor, albeit his father who was immediate apparent heir, was living.
The Lords sustained not the libel upon that member, for they found it was not alike, to dispone to a brother, as to a son or a brother's son, as to an oye, because a brother is not apparent heir, nor alioqui successurus, seeing the disponer has hæredes propinquiores in spe; and therefore cannot he presumed to have disponed to his brother, or brother's son, in fraud of his creditors, seeing that by that disposition, he does also prejudge his own son, if he should have one; and this but prejudice to the pursuer, to reduce the disposition upon the act of Parliament, as accords.
