Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Greig, James Williamson, and Dickson, v. Joseph Knox
Date: 9 July 1696
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The Lords advised the debate betwixt Greig, Mr James Williamson, and Dickson, against Joseph Knox, in Coupar. The case dipped on a very subtile question, Whether a substitute in a tailyied sum can assign the spes successionis before the devolution and existence of their right? It was thought, if it afterwards happened actually to exist, there was some ground to plead the validity of the prior assignation while it was but in spe; for, though viventis nulla est hœreditas, yet pactum de hœreditate viventis valet in our law, as one may assign his interest as a bairn of the house, though the game depends on the future event of his father's death. See July 6th 1630, Aikenhead against Bothwell. But here the mother, Janet Kinloch, was substitute, failing of her children by death, to succeed to such a part of their portions: Ita est, That did not exist in her time; but she deceased before them, and then they died; so it could never be said to be in bonis of the wife, nor to have fallen under her escheat; and the L. 42, D. de Acquir. Her. Domin. says expressly, Substitutio quae nondum competit extra nostra bona est: See Craig, Feud. p. 219 et 239:—And so it was urged the assignation she made to Williamson, her husband, could convey no right, seeing she deceased before the devolution of it in her person. Then it was argued, That they could only be heirs to the wife, she being a member of the tailyie, and so could not quarrel the assignation, which was her deed.
The Lords found, They were not obliged to be heirs or executors to her in that right representative so as to fulfil all her deeds, but only designativè, as the persons who might be heirs: and so preferred Greig to Williamson, the assignee.
