The heir collating his heritage, has a title to a share of the childrens part, but is obliged to collate whatever is derived to him from his father, whether by disposition or representation.
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In the count and reckoning of the executry of Bailie Murray, decided the 16th, (supra) the eldest son, as heir, offered to communicate the heritage to which he should succeed, and desired to be sharer with the bairns, who alleged, that the heir behoved not only to communicate what he should succeed to, but a tenement disponed to him by his father, which communication ought to be in and to the whole moveable heritage, whereby the legatars would have a share, as well as the bairns. It was answered, That the heir had unquestionable right to come in with other children, either in case there were no heritable right, but all the succession were moveable, or in case he would communicate the heritable succession falling to him; but there was neither law nor custom for communicating what he got from his father by donation. And it was found, in the case Dutchess of Buccleugh and Earl of Tweeddale, No 8. p. 2369. that David Scot had a share of the bairns part of his father's gear, without communicating the right of a considerable estate of land which he had from his father by disposition. It was answered, That the cases were not alike, for David Scot was a bairn in the family, et proprio jure had a share in the bairns part, without communicating of what land he had got, that having done no prejudice to the bairns, nor abated any part of the moveable estate; but the only ground of the heirs being admitted to a share of the moveable estate, is, that law allows him to be in no worse condition than other children; so that, if either by succession or disposition, he be as well as they, that ground ceaseth; and, therefore, he must communicate both, if he crave a share in the moveable estate; for it is ordinary for fathers, in their sons' contract of marriage, to infeft them in their whole heritable estate, Whereby there remained no heritable succession, and yet they were never admitted to partake of the moveables, but were excluded as heirs per prceptionem hæreditatis; and there is no reason that an inconsiderable remnant of an heritage should, by communication thereof, admit heirs to the moveables, when perhaps the far greater part were enjoyed by them, by their father's disposition.
The Lords admitted the heir to a share with the other bairns, providing that he communicate all that he had of the heritable estate, by disposition or succession, by being infeft as heir, and disponing to the children an equal share with himself of the said heritable estate, with the burden of an equal share of the heritable debt. But the Lords did not determine, whether the communication should be only to the bairns part, or also to the dead's part, but were clear that he was not to communicate to the relict's part, seeing there were other bairns in the family, and the relict would neither have benefit nor loss by any thing the husband, nor any, could do, as to her share.
