Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. I.
Competent to all sorts of heirs.
Waird v. Waird
Date: 8 January 1675 Case No. No 3.
Exhibition ad deliberandum was not elided because the pursuer had renounced to be heir, in favour of a creditor, or because he had granted a bond, whereupon the heritage was adjudged from him
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Marion Waird pursues an exhibition of writs granted by one James and William Wairds, to whom she is apparent heir, and thereupon obtained decreet before the magistrates of Stirling, which being suspended, the suspender insisted on these reasons, 1mo, That the charger hath renounced to be heir. 2do, That she hath emixt herself with the defunct's estate, by granting bond, whereupon the same is adjudged from herself, and so res non est integra, she cannot deliberate, and ought not to put the defender to the trouble to produce these writs to her. It was answered, That the renunciation to be heir was only in favours of one creditor, and is not general, and may be satisfied, and doth neither hinder the pursuer to enter, or deliberate; and for the alleged emixation, it is not relevant to stop exhibition, neither hath the pursuer possessed thereby, and if it were true, may renounce the same.
The Lords repelled the reasons, and sustained the exhibition.
Fol. Dic. v. 1. p. 283. Stair, v. 2, p. 303.*** Gosford reports the same case:
Marion Waird as apparent heir to James and William Waird her uncles, having obtained a decreet against Margaret Waird and James Trumble her son, in an exhibition ad deliberandum, there was suspension raised upon these reasons; 1mo, That she had renounced to be heir, whereupon an adjudication was obtained at the instance of a creditor of her uncles; 2do, She had behaved herself as heir, by intromitting with moveable heirship, and the mails and duties of lands, and so could not charge for exhibition of any writs unless she were heir served and retoured. It was answered to the first, that an apparent heir being charged to enter, may renounce, quoad that creditor at whose instance she is charged, which will be a good ground of adjudication, but will not hinder to pursue an exhibition ad deliberandum, to the effect that she may know the whole condition of the estate, and thereafter enter or not enter as she thinks fit. It was answered to the second, that an apparent heir's intromitting with moveable heirship or rents, cannot preclude them from pursuing an exhibition ad deliberandum, because exhibitions for that effect are favourable, and can prejudge no creditor. The Lord did repell both the defences, and sustained the summons for exhibition ad deliberandum, which seems hard as to the second allegeance of a mixtion with the defunct's heirship; the reason for granting summons for the exhibition ad deliberandum to apparent heirs, being chiefly founded upon that principle that res est integra by their abstaining from meddling, whereas by a mixtion and intromission, which infers a passive title, they ought not to deserve that favour, but should be forced to enter heir, that lawful creditors be not involved in pleas whereof the event is uncertain.
