Scottish Court of Session Decisions

Subject_1 HEIRSHIP MOVEABLES.
Subject_2 SECT. III.

In what cases not claimable.

Pollock
v.
Pollock

Date: 2 November 1667
Case No. No 31.

A son having renounced to be heir to his father, found that the heirship moveables belong to the father's executor.

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John Pollock having granted a bond of 5000 merks to James his second son of the first marriage, the said James intented and pursued for payment both Robert eldest son of the same marriage, heir of line, and John eldest son of the second marriage, and heir of provision, as charged to enter heir respective. It was alleged for the heir of the first marriage, That he offered to renounce; and for the heir of provision, That the heir of line ought to be first discussed by adjudication; and condescended upon moveable heirship, which might be adjudged. It was answerd for the heir of line, that his father, having provided him, had taken from him a renunciation of all that could belong to him as heir so that he Could have no right to the moveable heirship, which, in respect of his renunciation, would be considered as other moveables and fall under executry. It was replied for the heir of provision, That by the renunciation, the heir of line had renounced his kindness, to the effect his father might have power to dispose of the heirship; but his father not having disposed thereof, The right returned to the heir of line again, the renunciation being in favours of him and his heirs; as in renunciations of that nature as to lands, if the father does not dispose of the same, they will notwithstanding belong to the heir. Some of the Lords thought, there should be a difference betwixt lands and moveable heirship; in respect the right of lands whereof the father died infeft, cannot be settled in the person of any other but the heir, who therefore ought to have right notwithstanding of the renunciation; but the moveables which should fall under heirship by the renunciation of the heir, cease to be heirship; and may be confirmed as other moveables: Others thought, that the effect of such renunciations should be the same as to moveables and lands; the father's intention being one and the same for both; and therefore, as the right in the construction of the law returneth to the heir of the father, who doth not otherwise dispose of his lands, there is the same reason as to moveable heirships; and as to the pretence foresaid, it is of no weight, seeing if it were the intention of the father, that by such renunciations the son should be denuded, without return, though the, father should not dispose of his lands, the son may be pursued and forced to denude himself, that his renunciation may be effectual in favours of the nearest of kin.

The Lords, before answer, ordained the renunciation to be produced, that they might consider the tenor of it.

1668. January 17. —The Lords having considered the renunciation mentioned above, found, that it being in favours of the second marriage, and in effect an assignation, could not accresce to the granter.

Dirleton, No 107. p. 45. & No 138. p. 57. *** Stair reports the same case:

Umquhile John Pollock in the Cannongate, having given a bond to James Pollock his son of 5000 merks, he pursues Robert Pollock the heir of line, and —— Pollock, heir of the second marriage, for payment. The heir of line compearing, renounced; whereupon the pursuer insisted against the heir of provision, who alleged no process, till the heritage befalling to the heir of line were first discust, and condescended upon the heirship moveables. The pursuer answered, There could be no heirship in this case, because the heir of line had renounced all he might succeed to by his father, heritable or moveable, in favours of his father, his heirs and executors, bearing expressly, that his wife, and his bairns of the second marriage, should have the whole right; ita est, Rutherford, the wife, had confirmed the whole moveables promiscue, without exception of heirship, and therefore the heir of line himself (if he were entered) could claim none. It was answered, That the renunciation of the heir apparent of line being in favours of his father, after his father's death, it returned back to him from his father as heir of line again, and could go to no other person, neither thereby could the heritable moveables belong to the executor.

The Lords found the renunciation sufficient to exclude the heir of line from the heirship moveable, and that they did thereby belong to the father's executor; therefore found no further necessity to discuss the heir of line, and decerned, against the heir of provision.

Stair, v. 1. p. 510.