The question whether the heir is liable to aliment the defunct's family till the next term after his decease, was superseded till diligence should be done against the moveables.
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The Lady Tarsapie pursues the Laird of Tarsapie, who succeeded as heir to his brother, her husband, for the aliment of the defunct's family, till the next term, after his death, and specially for the aliment, and —— to the pursuer's son, heir apparent to his father. The defender alleged, Absolvitor; because the libel was no ways relevant against him as heir, but, by the constant custom, the entertainment of the defunct's families was ever a burden on their moveables, and upon their executry. The pursuer answered, Though it was ordinarily retained off the moveables, yet the heir was also liable, seeing the defunct was obliged to entertain his servants and children, at least to a term, but much more when there, were no moveables, or where the defunct was rebel, and the donatar intromitted. The defender answered, That it was novum to convene an heir on this ground, and that the allegeance of there being no moveables held not here; neither is it relevant that the moveables were gifted, unless it had been declared before the defunct's death and possession obtained, otherways the relict ought to have alimented the family out of the moveables, which would have liberated her from the donatar, and is yet ground against the donatars. The pursuer answered, She could not retain; because the donatar, with concourse of the defender, did put her. brevi manu from the defunct's house, and all the moveables.
The Lords having amongst themselves considered this process, did put difference between the aliment of the apparent heir, and the rest of the family: As to the heir, they found, that albeit he was never infeft, yet, as apparent heir, he had right to the mails and duties from his father's death, until his own death, though the terms had been to run before he was born, being in utero, and that the defender, in so far as meddling with the rents, was liable for the apparent heir's aliment; but, for the rest of the family, the Lords superseded to give answer till diligence were done against the donatar, or other intromitters with the moveables.
