The disposition must flow from the father. - The disponee must be apparent heir in the subject. - Effect of the disponee dying before his father. - Disposition in trust for behoof of the apparent heir. - What must be the nature of the subject disponed to infer the passive title? - Acceptance of the disposition sufficient. - Bonds disponed to the heir will be presumed to have been heritable, in order to infer the passive title.
La Smeiton v. L Smeiton.
Date: 29 January 1639 Case No. No 107.
In a case similar to Forbes against Fullerton, No 106. p. 9771. the grandson fiar, after the death of his father, the liferenter, was found lucrative successor.
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The Lady Smeiton pursues registration of a contract of marriage, made betwixt umquhile James Richardson of Smeiton her son, and Rachel Wardlaw his spouse, whereby her umquhile husband, father to the said umquhile James their son, provided the pursuer to her liferent of the lands of Smeiton, in recompence of the lands of Wallieford, which she being provided unto, renounced in favours of her said son; for registration whereof she pursues James Richardson, now of Smeiton, oye to her umquhile husband, as successor to his goodsir post contractum debitum. And it being alleged, That he could not be convened as universal successor to his goodsir, because the time of the acquiring of that right from his goodsir, his father was then living, who was then apparent heir to the defender's goodsir, and so he can never be reputed, nor convened as universal successor, his father being on life; the Lords repelled this exception, in respect of the infeftment of the lands, granted after the contract of marriage, whereby this pursuer was provided to her liferent, as said is, and was given by the goodsir to the defender his oye, with reservation of the liferent to the defender's father, so that the goodsir and the father contracting together to infeft the oye in fee, and providing the father to the liferent, the Lords found this sufficient to make the oye successor to his goodsir, albeit then the oye had his father on life, who was in linea recta apparent heir before the oye, which was found no impediment to exclude this pursuit; but that the same should be sustained against the oye as universal successor, otherways all just creditors might be fraudulently elided.
Act. ——.Alt. Nicolson, younger.Clerk, Scot.
Fol. Dic. v. 2. p. 35. Durie, p. 870.
