An heritor was succeeded by his eldest son, who survived him seven years, and died unentered. After the death of this apparent heir, a younger brother having succeeded to the estate, offered to serve heir to his father cum beneficio inventarii. Found, that second or posterior apparent heirs have a year of deliberation, though the first had suffered it to expire without serving; and the service was therefore allowed to proceed.
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Andrew Bruce of Earlshall died last vest and seised in these lands, about eight years ago, leaving Andrew Bruce his eldest son, and Mr Robert his second. Andrew having died in April 1703, unentered, Mr Robert raises brieves in January 1704, to serve himself heir to his father. Compearance is made for the Earl of Southesk and other creditors, to stop the service; and on application to the Lords, they name two of their number to be assessors to the macers; and on their report, a hearing in presence being allowed, it was alleged for Southesk, That Mr Robert cannot now seek the benefit of the act of Parliament 1695, by entering cum beneficio inventarii, because that act being an innovation of our old law, and by experience found hurtful to creditors, ought not to be extended; but so it is, that act allows them only to enter with that benefit within the year of deliberation for making up the inventory, and more than seven years are elapsed since Earlshall's death, who stood last infeft, and therefore he cannot enter to him by virtue of that act; neither is this any hardship, for if he will not represent his father, by entering simply to him conform to the old law, then he may abstain. Answered for Earlshall, That the annus deliberandi was introduced in favour of apparent heirs, and not to their prejudice; and though the year and day be long run out since his father's death, yet that was not his fault, seeing there was a medium impedimentum in the way, viz. his elder brother Andrew, who died but within these nine months; and if he made not use of the act of Parliament, that negligence cannot be imputed to Mr Robert, his younger brother, who, during his life, was not valens agere, and could not serve, and now within the annus deliberandi from his death he has taken out his brieves, and cannot be secluded; both the year of deliberation and the entering cum beneficio inventarii being borrowed by us from the Roman law, and there an apparent heir had thirty years ad explorandas hæreditatis vires before he was cut off by prescription, unless the creditors urged him by charging and doing diligence, l. 69. D. de acquir. vel. omit.; and in the succession to moveables, the nearest of kin may confirm themselves executors quandocunque, unless interpelled by creditors. And the reason of simple entering was from the feudal law, where the vassal could not burden the fee with debt without the superior's consent (as now it is in tailzied estates); but our customs having altered that, and subjected heritage to debt as well as moveables, it was most equitable the heir should have the benefit of an inventory, as well as an executor, and not be liable ultra vires hæreditatis; and lately, in the case of Sir John Erskine of Alva and his father's Creditors, No 1. p. 5329., the Lords found the privilege of serving cum beneficio inventarii competent to him, although his father had died many years before the act of Parliament 1695, and consequently his annus deliberandi was long ago elapsed. Replied for Southesk and the creditors, That the annus deliberandi must run from the death of him who was last vest and seised, as appears by the 106th act 1540, seeing he is not serving heir to his brother, but to his father, who died many years ago; and if an apparent heir let a bond prescribe by not interrupting by the space of forty years, the second apparent heir cannot pretend he will yet interrupt, seeing he was non valens agere during his predecessor's life, and yet the negligence of the first will prejudge and cut off the apparent heir who is in secundo gradu; and if each apparent heir had a separate year of deliberation, this might confound and embarrass the diligence of creditors; for, suppose nine or ten brethren mutually succeeding one to another, if all of them claimed a year, when should creditors have access? And Justinian seems to allow no more but one annual prescription to them all, in l. 19. C. de jure deliber. —The Lords, by plurality, found a second or posterior apparent heir had a year of deliberation, though the first had suffered it to expire without serving, and therefore allowed Earlshall's service to go on.
Fol. Dic. v. 1. p. 361. Fountainhall, v. 2. p. 217.
