A disposition by a remoter heir, conveying to the disponee his hope of succession to an estate, when the nearest heir was yet, and many years thereafter, alive, was sustained, though it was alleged to be pactum corvinum de hæreditate viventis.
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John Williamson, sheriff-clerk of Perth, and his posterity, being deceased, Alexander Ragg, whipmaker in London, being the said Williamson's sister's son, takes brieves out of the Chancery for serving himself heir to his uncle in the lands of Barnhill, and a house in Perth. Isobel Brown, relict of Borthwick of Hadside, alleging, she is descended of the said John's uncle's daughter, raises advocation of Ragg's brieves, on this reason, that though your relation seem nearer than mine, yet I must be preferred, because I offer to prove, that Ragg, your father, being one of Oliver Cromwell's soldiers here in Scotland, during the usurpation, pretended to marry Margaret Williamson, sister to the said John, of which you was born, and yet had a wife then living in England, and was censured for taking two wives in one of their military judicatures they had at that time, and so you being an adulterous bastard, I, as next in blood, have raised advocation of your service, and taken out brieves for myself; and the witnesses to prove his being then married, being very old, as this affair is in re antiqua, she craved the witnesses might be examined to lie in retentis, till the declarator came in by the course of the roll. Answered, This allegeance of bastardy, in having two wives at one time, is a mere dream and chimera, and can never be proven; but, on the contrary, Ragg offers to prove, by the whole neighbourhood of Perth, that his father and mother cohabited together as man and wife during their whole lifetime, and were habit and repute such, and never any question nor controversy moved about it; and craved a commission for examining the witnesses thereupon.——The Lords advocated Ragg's service to their macers, of consent of both parties, and named two of their own number for assessors, to assist them in any objections that should be made, why neither of the services should proceed till the probation of bastardy on the one side, and of cohabitation as man and wife on the other, were taken.
1708. July 29.—In the cause, Ragg contra Brown, mentioned supra 15th July 1708, it was objected against Ragg's service, that without a procuratory no man living without the kingdom, as he did, could be served; and as to the procuratory produced, it was null, being a disposition made by Ragg to David Smith, Methven's brother, in 1700, now eight years ago, conveying to him his hope of succession to Clerk Williamson's estate, when the nearer heirs were yet, and for many years thereafter, in life; which is the pactum corvinum de hæreditate viventis reprobated by the Roman law, as inducing votum captandæ mortis alienæ; and it was contra bonos mores to dispose on her succession who lived seven years after that disposition, containing a procuratory to serve him heir to her whenever the succession should devolve and exist; and whatever an apparent heir may do, yet a remote presumptive heir cannot till their right exist. And now, after so long time, it may rationally be presumed, that he is dead, in which case his property is dead with him. Answered, That the Romans, a jealous people, much given to poisoning, did restrict such bargainings, but our law has repudiated these niceties, and sustained such pactions, as Durie observes, 6th July 1630, Aikenhead contra Bothwell, No 36. p. 9491.; and a mandate to be executed post mandantis mortem subsists, 18th January 1678, Gray contra Lady Ballegernoe, voce Tutor and Pupil; and friends may be empowered to divide an estate among children, and take it from one to another, as was sustained in the Laird of Dundas's case; and, by the 113th act Parl. 9. Jas I. no exception is received against the breif of mortancesty; and nothing hinders a person having no present right to resign and dispone what he has remotely in spe, and the supervenient title will accresce to the receiver. And so, by the same rule, a conditional procuratory may be granted, to take effect when his right exists; and though it be some years ago, yet still præsumitur vivere, unless they offer to prove dead.—The Lords sustained the procuratory as sufficient to carry on Ragg's service.
Fol. Dic. v. 2. p. 23. Fountainhall, v. 2. p. 453, & 459.
*** Forbes's report of this case is No 23. p. 5260. voce Heir Apparent.
