Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. V.
Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?
Blackburn and his Spouse v. Rig
1610.
January. Case No. No. 29.
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In an action pursued by Samuel Blackburn, and Janet Adamson his spouse, as heir to John Adamson, her father's brother's son, contra William Rig, for intromission with the heirship-goods which pertained to the said Robert the time of his decease, it was found, That she could have no action against him, because at the time of his decease he had a son of his own body, lawfully procreate, who was his apparent heir, to whom John Rig was tutor nominated; and he who was tutor to the bairn might lawfully have intromitted therewith, and that notwithstanding the bairn was never entered heir, because an apparent heir may possess heirship-goods, and dispone thereupon, albeit he may not pursue thereupon for the same if they be out of his hands.
Fol. Dic. v. 2. p. 368. Kerse, MS. p. 136.*** Haddington reports this case:
Adamson, heir to umquhile Adamson, her brother, and spouse to Samuel Blackburn, pursued William Rig for her brother's heirship goods, intromitted with by the said William. He excepted, That her umquhile brother having a son, who was his apparent heir, to whom William was tutor, the heirship goods were rouped and sold, according to the custom of the burgh, and the price delivered to the said minor, or converted to his use, who lived till he was fifteen years, and made his testament and constituted executors; so no process should be granted against William Rig. It was replied, That unless that minor had been retoured heir to his father, he could have no right to his heirship; and so William Rig, as intromitter, should be answerable. Notwithstanding whereof, the exception was found relevant.
