Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Services as Heirs
Click here to view a pdf copy of this documet : PDF Copy
1677. November 8.—This case was proposed. A man dies, leaving aland estate and two sons. The eldest goes off the country, and stays away seven or eight years, and no word of him whether dead or alive. Creditors, and others having little or no right, intrude themselves in the possession, and are more than twice paid of all their pretences. The younger brother has no title whereon either to debar them, or call them to count and reckon; quid juris, what shall he do? Some thought he might serve heir to the father. This was objected against; that non constabat whether his elder brother was dead or alive, and so no inquest could retour him nearest lawful heir, since there might be a nearer in life; (see David Melvill's case, who the Lords found could not be served heir to the estate of Leven, supra, No. 548, 20th February, 1677;) and the fama there was an elder brother was enough, since præsumitur vivere usque ad 100 annos, nisi probetur mortuus, albeit none appeared for him before the inquest. Yet services have been reduced in Scotland, on that reason, that there was a nearer on life; ergo, inquests have not scrupled in such cases to retour. But the most rational way, in such a case, were to give in a bill to the Lords of Session, representing the matter of fact, and craving a factory or other warrant from them, as curator bonis, to intromit and call others to account ne res medio tempore pereunt; upon caution to restore if the brother shall compear and claim his right.
