A person intromitted with heirship moveables when he was not apparent heir, but continued in possession after he became apparent heir. Found that he had not behaved as heir.
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The defender being convened to pay his predecessor's debt, as heir to him, by intromission with his heirship goods after his decease; it was found that that intromission could not make him liable to pay the debt as heir, and that he could not be reputed heir thereby; because, at the time of the defunct's decease, at which time it is libelled that the defender intromitted, the defunct had then living, after his decease, a full sister-german, who only might be heir, and not this defender, who was but half-brother to the defunct; so that his intromission could not be as heir, seeing he could not then have been heir; neither was it respected what the pursuer answered, that seeing that sister-german died without any to represent her, and that she was never heir served, and that there is none now nearer to the defunct than the defender, his continuing in the possession of these goods, which were heirship in law to the defunct, must now make him liable hoc nomine as heir, seeing there is no other that can be heir. This was repelled and the allegeance sustained, but the process was sustained against him to make such goods as shall be proved to be intromitted with by him forthcoming to the pursuer in ipsis corporibus, and no further to be liable.
Act. Cunninghame & Russel.Alt. ——.Clerk, Hay.
Fol. Dic. v. 2. p. 28. Durie, p. 454.
