John Wat, Writer in Edinburgh, v. David Forrest, Baillie
Date: 15 January 1706 Case No. No. 31.
A service as heir sustained to make one passive liable for the defunct's debts, who had a nearer heir in utero at the time of the service.
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John Wat, as creditor to the deceased Major Lauder, having pursued David Forrest, as heir to his daughter Helen of a first marriage, who was heir to the Major, for payment of his debt; the defender alledged he could not be liable passive, because his cognition as heir to his daughter Helen was null, in so far as she had a sister of a second marriage in utero at the time, who pro nata habetur, and as propinquior excluded the father, and at the time of that second daughter's decease there was a brother George in utero, who now lives.
Replied for the pursuer: The defender's service as heir to his daughter, who had a sister in utero, was not null ipso jure, but only ope exceptionis, and reducible at the instance of that child when born, if she thought fit to use her privilege, and object the nullity. So that the defender in the mean time stands liable to the debts; for the said daughter in utero the time of his service died without being entered heir to her sister; and the brother, yet an infant, was served heir by the defender his father only as a blind to evade the passive title himself, who had possessed these ten years by-gone under the colour of heir to his daughter whom he served heir to the Major. Nor could the defender's service be nullified by the son, who was neither gotten nor born at the time; and when he comes to be a man, will certainly ex capite fraudis & minorennitatis reduce his service to such a damnosa hæreditas, whereby the creditors will be baulked of their expectation from him.
Duplied for the defender: The service of a father to a child while another exists is certainly null ipso jure, as contrary to law; seeing there cannot be an heir where there is no hæreditas delata, more than a sister or younger brother's service to a father upon an absent elder brother's being reputed dead, would have any effect in law when he returns; or than there could be any obligation arising from marriage with a woman, who, though reputed free at the time, is thereafter discovered to stand married to another; or that a man, corroborating his predecessor's debt, would be excluded from founding on a discharge thereof afterwards found out. For the service of a remoter, while a nearer, though not known at the time, exists, is ipso jure null; see No. 185. p. 10984. & No. 13. p. 2704. which is founded in the very nature of the thing, and style of our brieves, that run in the present tense, Quis est propinquior, &c. the time of the service, which the defender was not. It imports not that the second daughter died afterwards unentered, and the son was not born at the time; for the service being originally null by her existence in utero, the nullity is kept up by the superveniency of the brother, who still hindered the case to exist where the father might be heir. For quod initio non valet tractu temporis non convalescit; especially cum non devenit in casum a quo incipere potuit. By the civil law a person, who, thinking himself true heir by mistake, acquires the heritage, and subjects himself to onera hæreditaria, nec hæres erit, nec obligatur hæreditati, L. 22. D. De acquirenda vel amitt. hæred. Nor doth L. 12. C. De Petit. bæred. advance any thing to the contrary: For where two are pretending to the heritage, and behaving as heirs, a creditor, during the depending competition, may pursue either. But here the party served, discovering his error, disclaims the being heir when there can be no inheritance, and is content to count for his intromissions in valorem as administrator of law to his son, who existed before intenting of this action; which ought to be taken off his hand as sufficient, as well as a vitious intromitter becomes only liable in valorem by a confirmation before any creditor's pursuit. 2do, et separatim, whether the defender's service as heir to his daughter be null ipso jure, or reducible, it hath the same effect; for reductions are declaratory actions operating retro as far as the reasons founded on.
Duplied for the pursuer: That the defender's service was not ipso jure null; for the daughter in utero might have miscarried and not been born, or born a monster; in either of which cases the maxim, non esse & non apparere sunt paria, would have taken place. And this point may be further cleared by the similitude of a testament ruptum agnatione posthumi, which continues valid, and the testamentary heir liable passive, unless quarrelled by the posthumus agnatus. The L. 22. D. De acquirend. vel. amittend. hæred. is nothing to the purpose, for it says only that the wrong heir cannot retain the heritage; and esto the defender might be brought to an account and dispossessed by his son, he is still liable to the creditors as once being heir; and as possessor hæreditatis, L. 12. § 1. C. De petit, hæred, Albeit if afterwards called to account for the rents by his son insisting in petitorio, he may claim allowance of all the debt he pays. Ibidem.
The Lords sustained the defender's service as heir to his daughter to make him passive liable for Major Lauder's debt.
Fol. Dic. v. 2. p. 399. Forbes, p. 66.
*** Fountainhall's report of this case is No. 15. p. 2954. voce Condition.
