No heirship moveables in the case of a person who died not infeft in lands, altho' he possessed them as heir apparent, and might have been infeft.
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John Seaton of Pitmedden did apprise the lands of Blair in anno 1638, and was thereupon infeft; after his death, James Seaton, his eldest son, did dispone the right of the lands to George Seaton, eldest son to the debtor, with warrandice; but in respect that the said apparent heir was never served heir nor infeft, Sir Alexander Seaton, the second son, now becoming apparent heir to his father, grants a bond, wherupon the rights of the lands of Blair are apprised from him as charged to enter heir, whereupon the heirs of George Seaton pursue Sir Alexander Seaton as representing his brother James Seaton, upon the clause of warrandice in James's disposition, and insist against him as behaving as heir to his brother by drawing of his heirship moveables, or getting a composition therefor, or intromitting therewith; 2do, As lucrative successor to him by a disposition granted by the said James his brother to the said Sir Alexander. The defender alleged, That the first member of the condescendence ought to be repelled; 1mo, Because the defunct was never infeft in any lands, and so could have no heirship, being neither prelate, baron nor burgess; 2do, The defunct was rebel, and his escheat was gifted and declared during his own life, long before the intenting of this cause, which doth purge the defender's intromission, who thereby is comptable to the donatar, and to no creditor, in the same way as confirmation of executors purgeth vitious intromission.
Both which the Lords found relevant.
And as to the second member, the defender alleged, That it is not relevant, for albeit a disposition to an apparent heir who is alioqui successurus be præceptio hæreditatis, and infers a passive title, yet that is only extended to descendants and never to collaterals who are not apparent heirs, so long as descendants are in spe, and therefore alienation of ward-lands to brothers or other collaterals infers recognition, but to descendants it doth not.
The Lords found that the disposition by one brother to the other, did not infer him to be lucrative successor. See Passive Title.
Fol. Dic. v. 1. p. 365. Stair, v. 2. p. 295.*** Dirleton reports the same case:
It was found in the case, Sir Alexander Seaton of Pitmedden contra Seaton of Blair, that Pitmedden's brother, though he was apparent heir to a baron, he could not have a moveable heirship; because he was not actually baro. Some were of opinion, that as to that advantage and privilege of having a moveable heirship, it was sufficient that the defunct was of that quality, that he was one of these estates; seeing a person once baro, though he be denuded is semper baro as to the effect and interest foresaid; and a prelate, though for age he should become unable to serve, and demit, yet is still a prelate as to that effect; and the apparent heir of a baron, who has right and in potentia proxima to be a baron, and is peer to barons, and may be upon the assize of noblemen and barons, if he should be prevented with death before he be infeft, it were hard to deny him the privilege foresaid, that his heir should have his moveable heirship; and if his heir would have the benefit as to a moveable heirship, his intromission with the same ought to import a behaviour.
