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.
More v. Ferguson
Date: 22 February 1681 Case No. No 116.
A younger son was found lucrative successor, accepting and using a disposition of his father's lands, wherein he would have succeeded as heir of a marriage.
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Grissel More, as executrix confirmed to John Chalmers her husband, pursues Ferguson as successor titulo lucrativo to his father the debitor.—The defender alleged no process, because he hath an elder brother who is heir of line, and is not discust; 2do, Though he were discust, the defender is not liable by any disposition made by his father, and albeit the disposition may be reduced, yet he is not personally liable.—The pursuer answered to the first, That the eldest son being weak, is past by, and all is disponed to this defender, who thereby is universal successor, and nothing can be shown of the father's succession, to which the eldest son could succeed.—The defender replied, That our law hath no such passive title as universal successor by disposition, though it were of the disponer's whole estate and means, but the passive title is successor lucrative by disposition in that right in which the party would have succeeded; so that the disposition is præceptio hæreditatis, which is equivalent, he being entered heir passive, whether the disposition be of all or of a part of that wherein he would have succeeded; and therefore præceptio hæreditatis is a relevant passive title against the heir of line, and if he be discust, against the heir-male, and these being discust, against the heir of tailzie or provision, such as the defender, who is heir of a marriage.—It was duplied, That præceptio hæreditatis cannot be extended to the heir of a marriage, who is in some sort a creditor by the contract of marriage, and therefore at most can be liable in quantum est lucratus.—It was triplied, That though the heir of the marriage be a creditor as to the heir of line, yet not as to his father's creditors, but as to them, he represents his father as debtor, if he immix himself in his father's heritage, by accepting dispositions of his land or annualrents; though assignations to bonds taken to the heirs of the marriage being liquid might only import quoad valorem as to any heir, yet accepting and using a disposition as to lands and annualrents, that is an universal passive title.
The Lords found it a relevant passive title, that the defender had accepted and used a disposition of his father's lands and annualrents, wherein he would have succeeded as heir of the marriage; and repelled the exception of the order of discussing, seeing the eldest son was neither entered heir nor had any thing to enter heir to.
