Scottish Court of Session Decisions

Subject_1 HEIR APPARENT.
Subject_2 SECT. IV.

Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.

David Henderson
v.
Robert Campbell

Date: 14 November 1783
Case No. No 37.

Though the ancestor die in the most distant parts, no addition is to be made to the annus deliberandi on accouut of the time elapsing between the the death and notice of it obtained by the heir.

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Robert Campbell, residing in Ayrshire, was the heir of James Campbell, who died in the East Indies. Upwards of a year after his death, but several months less than one from the time when the news of it were received in this country, Henderson, a creditor of Robert, obtained a decreet of adjudication against him, as charged to enter heir to James.

A judgment of the Sheriff, decerning in favour of the adjudger, in an action of removing from the lands adjudged, was, by bill advocation, brought under the review of the Court; the heir complaining, that he had been denied the benefit of the annus deliberandi.

The Lord Ordinary refused the bill of advocation.

The heir reclaimed to the Court, and

Pleaded; The heirs of persons who happen to die in the most distant parts of the world, are certainly not less entitled to the benefit in question, than those are whose ancestors have never stirred from home. But if, as has been done in this case, the annus deliberandi were to be computed prior to the time when notice of the predecessor's death shall have reached the heir, the consequence, equally unavoidable and unjust, must ever be, to deprive such heir, wholly or in part, of that most important privilege. There cannot be any foundation in law for so great an inconsistency. The jus deliberandi, borrowed from the Romans, is a part of our common law, and ought always to be understood according to its true spirit and meaning. In ordinary cases, no doubt, the proper method of computation is to begin from the predecessor's death; and in some statutes, as 1503, cap. 76. and 1540, cap. 106. this is of course recognised. Where, however, without sacrificing the privilege itself, such a computation becomes impossible, law cannot but concur with reason in adopting a different mode. Thus, in the case of posthumous heirs, the year is reckoned, not from the time of the ancestor's death, by which means the benefit might seldom have its effect, but from that of the children's birth, 28th February 1627, Livingstone against Fullerton, voce Induciæ Legales. On the same principle, where several apparent heirs have happened to come in the place of one another, a full year, calculated from the period at which the succession devolved to them respectively, has been allowed to each, Bruce contra Earl of Southesk, voce Heir cum Beneficio. No reason appears, why a principle, so rational in itself, and so well established by precedent, ought in the present instance to be disregarded; especially as the question here concerns merely probabilem causam litigandi, to the effect of admitting the matter by advocation to a more perfect discussion.

Answered; The doctrine of ‘charges to enter heir’ is to be strictly limited by the terms of the statute of 1540, c. 106. which introduced that mode of proceeding. Now that enactment expressly mentions “year and day after the decease of the father or predecessor.”

Besides, the relaxation or extension of the law contended for by the heir seems in itself altogether impracticable. For what an infinite number of periods for the deliberation of heirs would the Court have to devise, in order that those times might correspond to the endless diversity of the distances from this country to all the parts of the habitable earth?

Replied; No argument from the strictness of interpretation, belonging to statutes that confer privileges, can militate against the heir. If the statute of 1540 introduced a privilege, it was not in favour of heirs, but in direct opposition to them; being in behalf of creditors alone, who formerly had no means of attaching the heritage of debtors whose heirs remained unentered. Nor is there any difficulty in ascertaining, either, in general, the time requisite to obtain information from any corner of the world, or the particular fact when such intelligence has been actually received; after which there is nothing farther to be required. It is not an infinite variety of different periods, but the single space of year and day, to which the attention of the Court will be called.

Observed on the Bench; It would be highly inexpedient and unjust, were the effect of the diligence of creditors to depend on the causual circumstance of the particular time necessary for communicating notice of the predecessor's death to the heir, whose place of residence may be unknown to the creditors.

The Court ‘adhered to the interlocutor of the Lord Ordinary on the bills.’

Afterwards a reclaiming petition for the heir was refused, without answers.

Lord Ordinary, Stonefield. For Henderson, G. Fergusson. Alt. Crosbie, M'Cormick Fac. Col. No 120. p. 189.