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.
William Hamilton v. M'Farlane of Kirkton
Date: 28 February 1662 Case No. No 109.
A disposition to a younger son makes him not lucrative successor, because he is not alioqui successurus.
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William Hamilton pursues James M'Farlane of Kirkton, as successor titulo lucrativo to his father, to pay his debt, who alleged absolvitor, because he was not alioqui successurus, in respect that, at the time of the disposition, he had, and hath, an elder brother, who went out of the country, and must be presumed on life, unless the pursuer will offer to prove that he was dead before this disposition; so that, at the time thereof, the defender was not apparent heir et alioqui successurus, because vita præsumitur. The pursuer answered, The defence was not relevant, unless the defender would be positive, that the time of the disposition his elder brother was on life; especially seeing he had been out of the country twenty years, and was commonly holden and reputed to be dead.
The Lords sustained the defence, that the elder brother was on life the time of the disposition, and reserved to their own consideration the probation; in which, if the defender proved simply that his brother was actually living the time of the disposition, there would remain no question; and, if he proved that he was living about that time, they would consider, whether, in this case, the presumption of his being yet living should be probative.
