There can be no heirship moveables where the defunct possessed an heritable bond without infeftment.
A defunct, heir to an actual burgess, who might have entered when he pleased, had borne stent in the town as a trafficking burgess. This was found sufficient to entitle his heir to heirship moveables.
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One gives an assignation to an heritable debt, but he afterwards dying without coming to kirk and market, the heir reduces the assignation ex capite lecti; whereupon the assignee intents a process against the cedent's executor, to pay the sum assigned out of the moveables, on this ground, that legatum rei alienæ scienter legatæ makes the executors liable to make it effectual quoad valorem, both by the Roman law, § 4. Institut. de legat. and ours, 2d Dec. 1674, Cranston contra Brown, voce Quod potuit non fecit. Alleged for the Executor, That this cannot be called res aliena, for the heritable bond was his own. 2do, Neither can it be called legatum, for it is conveyed by assignation, which is a deed inter vivos, and so the brocard does not meet. The Lords found the executor not liable to make up this debt.
He had another process for the moveable heirship. Alleged, There can be no heirship save where the defunct was a prelate, baron, or burgess, none of which he was. Answered, He had an heritable bond, which was sufficient, though no infeftment was taken thereon, 2do, The defunct was the son of an actual burgess, though he was not entered himself. Replied, Wadsets or other heritable rights never make one a baron in the sense of moveable heirship, without they be completed by infeftment; and though it is the degree and quality that must be regarded in this case, yet even an infeftment of annualrent has been sustained to infer heirship, Scrymzeour contra the Executors of Murray, No 18. p. 5396. And as to his being a burgess's son, non relevat, for an honorary burgess's son gives no right to heirship, much less one unentered, Lesly contra Dunbar, No 15. p. 5392. The Lords found the heritable bond whereon infeftment had not followed did not give his heir right to claim moveable heirship; but found he had right thereto by the defunct's being heir to an actual burgess, who might have entered when he pleased, and bore stent in the town of Glasgow as a trafficking burgess. See Quod potuit non fecit.
