Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.
Alexander Ragg v. Isobel Brown, Lady Hartside
Date: 27 July 1708 Case No. No 23.
One having disponed to another all right he might happen to have to a woman's estate, to whom he, the disponer, was presumptive heir, with a procuratory to serve him heir, in case she died without heirs of her own body; the procuratory though granted in her lifetime, was sustained as a sufficient warrant to serve the granter, who was out of the kingdom, heir to her, when the succession fell due to him by her death.
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At expeding before the macers, the service of Alexander Ragg, who was out of the kingdom, as heir to Margaret Williamson of Barnhill, by virtue of a procuratory granted by him for that effect, to David Smith, uncle to the Laird of Methven; it was objected by Isobel Brown, That the procuratory produced is null, being, granted by Ragg long before Margaret Williamson died, or the succession devolved, to him as apparent heir; and could not revive by her death, according to the rule quod ab initio vitiosum est, &c.
Answered for David Smith; 1mo, It is jus tertii to Isobel Brown, who has no interest to make such an objection. 2do, He produced a disposition to him by Alexander Ragg, conveying all right he had to Margaret Williamson's estate, in case she died without heirs of her body, and the succession fell to him; and containing a procuratory to David, in that event to serve and retour the disponer as heir to Williamson, which procuratory is now good, when the condition is purified. For what more ordinary, than resignations by apparent heirs, whose supervening service renders the same effectual? And mandatum post mortem exequendum subsists after the mandant's death, both by the civil law and by ours, Jan. 18. 1678, Gray contra Ballegerno, voce Tutor and Pupil. But whatever might he pretended, if the procuratory were solely in rem mandantis, this in rem mandaturii, in valid unquestionably.
Answered for Isobel Brown; She had good interest to make the objection, being the next heir of line to the defunct, and presumed to be so, till a nearer appear; or a valid procuratory from him. 2do, It is against law and good manners, for a presumptive heir to grant warrant to serve him, when the event of his succession should happen, by the death of a person, at the time not out of hopes of children; which pactions de hæreditate viventis, as Vota captandæ mortis alienæ, are reprobated in law.
Duplied for David Smith; The Roman subtlety against pactum de bæreditate viventis, was peculiar to that jealous people; contrary to the rule of nature, by which every interest present or future, is the subject of agreement; and rejected by the universal custom of Europe, particularly of Scotland, July 6. 1630, Aikenhead contra Bothwell, voce Pactum Illigitum. 2do, It is plainly jus tertii for Isobel Brown, who proves not her claim, to object against the service, which proceeds upon what is instantly verified; and, by the act 113. Parl. 9. Ja. I., no exceptions are to be proponed against the brieve of inquest, as if it were a brieve off plea, if it have the ordinary forms of execution therein mentioned.
