If a bond or disposition of tailzie is made in favour of the heir of investiture, he cannot neglect it, and serve heir-at-law.
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Catharine Kinnier being heritable proprietrix of some booths and houses in Edinburgh, she dispones them, in 1698, to the heirs to be procreated betwixt her and Mr. John Dickson, her husband, which failing, to Andrew Kinnier, her brother, with this provision, that in case he shall succeed, by virtue thereof, he shall pay to Catharine Turnbull, her husband's niece, 500 merks, and some legacies to other persons. The right of these tenements being devolved on Andrew Kinnier, in default of issue of the disponer's body, Catharine Turnbull pursues him, as the next institute, for payment of the 500 merks with which he is burdened. Alleged, Absolvitor, for the clause is conditional, in case he succeeded by virtue of that disposition; which condition not existing, he cannot be liable; for it were unreasonable to make him accept a disposition that burdens him with as much debt as the land is worth; and therefore he resolves to enter as heir of line to his sister, who only burdens him with these legacies if he succeed to her by the disposition; so the condition not existing can never bind him. Answered, This is the gloss of Orleans, and wholly distorts the clause whereby the disponer's enixa voluntas is evident, that her heritage shall be burdened with that sum quocumque modo her substitutes come to the estate; and it is fraudem legi contractus facere to say, I will repudiate my sister's disposition, and enter heir ab intestato, and so defraud and evite her legacies. The Prætor was juster than so; for he appointed quamdiu ex testamento adiri potest hæreditas, ab intestato non defertur, L.39. D. De acq. vel am. hæreditate; et quamdiu potest valere testamentum tamdiu hæres legitimus non admittitur, L. 89. D. De reg. juris; so that entering to possess as heir or apparent heir will not save him; for, being a potestative condition, he may fulfil it; and if he refuse, then the law says, In jure civili receptum est quoties eum cujus interest conditionem non impleri fiat quo minus impleatur, perinde haberi ac si conditio impleta fuisset, quod etiam ad libertatem legata et hæredum institutionem perducitur, L. 261. D. De reg. jur. So that he may abstain from the heritage, and repudiate the succession; but if he intromit with the mails and duties as heir, he cannot reject the burdens annexed to the disposition, but must implement them; and seeing he has granted a factory, and uplifted the rents, he must be liable. The Lords found he might totally abstain, but if he meddled with the heritage, he could not repudiate the burdens laid on it by the proprietor; and therefore found him liable in payment of the pursuer's 500 merks.
Fol. Dic. v. 2. p. 431. Fountainhall, v. 2. pi. 695.Forbes reports this case:
Catharine Kinnier having disponed some booths and houses in Edinburgh to herself, and Mr. John Dickson, her husband, in life-rent, and the children to be procreated betwixt them in fee; which failing, to Mr. John's children of any other marriage; which failing, to Andrew Kinnier, her brother, his heirs and assignees; with this provision, That in case the husband's children of any other marriage should happen to succeed to the booths and houses by virtue of that disposition, they should pay £.100 Sterling to her said brother; and that Andrew Kinnier, if he succeeded by virtue thereof, should be obliged to pay some particular sums to the persons therein-mentioned, particularly 500 merks to Catharine Turnbull. The right to the foresaid shops and houses devolved to Andrew Kinnier, both ab intestato, and by the disposition; but he entered not by the disposition. Whereupon Catharine Turnbull pursued him for payment of the 500 merks.
Alleged for the defender: He is content to hold count to the pursuer, and other persons the disposition was burdened with sums to, they always allowing him retention of the £.100 sterling tanquam præcipuum, as his falcidian or trebellianic share, conform to the Roman law, when the heir instituted was burdened with legacies equal to the value of the testator's estate; L. 73. Pr. in Fin. And so it is, that the disposition to the defender, failing Mr. John Dickson's heirs, is burdened with sums exceeding, at least equal to, the value of the tenements disponed. Now, it is not supposable that the disponer intended to put the defender in a worse case, when he represents her as heir, than had he been debarred by the existence of the persons instituted before him, viz. Mr. John Dickson's children of any other marriage; in which case, the pursuer and the other creditors or legataries in the disposition had no pretence to any thing. Besides, he is quasi hæres institutus ex re certa, which admits of no deduction or defalcation; L. 13. Cod. De Hæred. Instit. § 9. Instit. De Fideicom. Hæred.
Answered for the pursuer: By the falcidian law, which secured to the testamentary heir a fourth part of the heritage, and allowed only the faculty of legating to the extent of the remainder, the testamentary heir omitting to succeed ex testamenta, and claiming the heritage as hæres legitimus, forfeited quartam falcidiam; 2do, The defender having entered summarily at his own hand, and immixed himself with the heritage, by uplifting the mails and duties as apparent heir, repudiating the defunct's destination, he ought to be liable to all debts constituted by her, without allowance to claim any thing as præcipuum.
The Lords found, That since the defender entered not by the disposition, he is not simply liable; but that the subject disponed being burdened with £.100 Sterling to the defender, and 500 merks to the pursuer, the defender is liable for as much of the 500 merks as will remain in his hands over and above the £.100 Sterling intended by the disposition for himself tanquam præcipuum.
