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.
The Lady Spencerfield v. The Laird of Kilbrachmont
Date: 17 December 1672 Case No. No 113.
Found in conformity with Scot against Boswell, No 110. p. 9776.
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The Lady Spencerfield pursues the Laird of Kilbrachmont as lucrative successor to his father's brother, for payment of a debt of the defunct's, as representing him, in so far as he accepted a disposition of the lands, in which he was then apparent heir, without an equivalent onerous cause. The defender alleged' That the libel and condescendence were not relevant, because lucrative successor is never sustained as a general passive title, by accepting a disposition, unless it be granted to that person who is alioqui successurus by the necessary course of law, as being granted to the eldest son by the eldest son; but it was never sustained upon any disposition granted by a brother to a brother, or to a brother's son or other collateral; for, though dispositions to such may be reducible, as without a cause onerous, they cannot make the accepter liable for all the disponer's debt, seeing there are still nearer successors in spe, viz. the defunct's children; and it cannot be supposed that the ground of this passive title for preventing of dispositions to children in prejudice of creditors can take place where the disposition is to a brother or nephew, the presumption there being nothing so strong that the defunct would exclude his own children. It was answered, That the defender was apparent heir for the time, and that the disponer was a very old man without hope of succession.
The Lords refused to sustain the summons upon the general passive title, but found the pursuer might, in this action, insist upon the act of Parliament 1621 against the defender, and in so far as he had benefit by disposition make him liable.
Fol. Dic. v. 2. p. 35. Stair, v. 2. p. 136.*** Gosford reports this case:
Kilbrachmont being pursued as representing his brother upon the passive titles, that he was successor titulo lucrativo post contractum debitum, it was alleged for the defender, That he being only apparent heir to his brother by the collateral line, any right made by his brother to him, can only be reduced upon the act of Parliament as done in fraudem creditorum, but cannot be a passive title to make him liable to his brother's whole debt far exceeding the worth of the lands, seeing that is only sustained against the apparent heirs in linea recta where the father dispones the estate to his son or grand-child who of necessity must be heir if he die before them; whereas, a brother disponing to another brother, he may have children of his own, and so he is not necessarily to be his heir in case he survive him. It was replied, The defender the time of the disposition being only his apparent heir, it is sufficient to make him liable passive for his brother's whole debt. The Lords did sustain the defence and found that dispositions made to a brother or one of the collateral line, could not infer a passive title, but they were only liable in quantum lucrati sunt, and their rights may be reduced upon the act of Parliament as done in fraudem.
Gosford, MS. No 545. p. 291.
*** A similar decision was pronounced, 22d December 1674, Heirs Portioners of Seaton against Seaton, No 21. p. 5397, voce Heirship Moveables.
