Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. II.
Who liable to Exhibit? - No interest to call for Writs where the Defunct was Denuded. - Ought to be no conclusion for Delivery, nor for Count and Reckoning.
Yester v. Lauderdale and Others
1683.
March. Case No. No 23.
Found the reverse of Ayton against Ayton, No 17. p. 3995.
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In an exhibition ad deliberandum, at the instance of the Lady Yester, as heir of line to the Duke of Lauderdale, against my Lord Lauderdale and others, wherein she called for the writs of lands and bonds due to the defunct;
Alleged for the defenders; That the defunct had tailzied all his lands, not disponed to the Dutchess, to my Lord Lauderdale and my Lord Maitland, and had, by a testament, made the Dutchess his executor and universal legatar, so that the pursuer has nothing to enter heir to; and therefore needs not deliberate about entering.
Answered; The disposition of tailzie not being acknowledged by my Lord Lauderdale and Maitland, nor infeftment taken thereon, nor the defence proponed for them, it cannot be obtruded by any other. 2do, Seeing the pursuer may enter heir of line by a general service, it concerns her to know what moveable estate there is, seeing she will get relief of the moveable debts.
The Lords found the disposition of tailzie was sufficient against the exhibition of the writs of the tailzied lands, though no infeftment followed; and that my Lord Lauderdale might propone the defence intra annum deliberandi, without the danger of behaviour as heir; and found, that the pursuer ought to have inspection of the bonds, or of the inventory of the testament, if it was given up by the defunct himself, and assigned a term to exhibit; declaring, that the defenders, upon production of the disposition of tailzie and testament, should be obliged to produce no further, unless these were quarrelled.
1684 February.—Thereafter the Lords found, that now the annus deliberandi being expired, the disposition of tailzie must be owned, by the heirs, under the hazard of a passive title, or by some of his creditors, if any had adjudged the same; and found the nomination in the testament, though not confirmed, might hinder the apparent heir to get inspection of the moveable bonds.
Fol. Dic. v. 1. p. 283. Harcarse, (Exhibition) No 482, p. 132.*** Fountainhall reports the same case:
The Earl of Tweedale, Lord and Lady Yester, their exhibition ad deliberandum against the Dutchess of Lauderdale and the Earl thereof, being reported; ‘The Lords found the Duke of Lauderdale's tailzie, though no infeftment be yet taken thereon, sufficient to exclude the necessity of any farther production for inspection; as also that the said late Duke's disposition of Leidington, &c. to the Dutchess, cuts off Lady Yester's title of apparent heir of line to her father, or of calling for any further production quoad these lands; and for her renunciation, if it was general, of her very hability and capacity to succeed, of the spes successionis, then found it debarred her from pursuing ad deliberandum, but if it related to the jewels or other particulars only, then found it did not exclude her from this action.’
