Scottish Court of Session Decisions

Subject_1 EXHIBITION AD DELIBERANDUM.
Subject_2 SECT. I.

Competent to all sorts of heirs.

David Crawfurd
v.
Margaret Crawfurd, Sister to the deceased Andrew Crawfurd of Crawfurdstoun, and Andrew Crawfurd, now of Crawfurdstoun, her Son

Date: 10 February 1714
Case No. No 9.

Exhibition ad deliberandum is competent to all kinds of heirs, male and of tailzie, as well as heirs of line. Gestio pro herede, is no bar against an apparent heir pursuing exhibition ad deliberandum.

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David Crawfurd having, as apparent heir male to Andrew Crawfurd of Crawfurdstoun, pursued an exhibition ad deliberandum against Margaret Crawfurd, and Andrew Crawfurd her son, and called for production of the said deceased Andrew Crawfurd's contract of marriage with Agnes Campbell; wherein the pursuer alleged that the defunct had tailzied this estate to heirs male,

Alleged for the defenders, 1mo, Action ad deliberandum is competent only to heirs of law who succeed provisione legis, and not to heirs male or of tailzie who succeed provisione hominis, and have not an universal, but only a special title of succession; unless they instruct that the former investitures are conceived in favours of heirs male. For, if the pursuer's simple assertion, that there were rights in the defunct's person, to which he may succeed as heir male, be sustained to oblige the defenders to depone in this action, any stranger who hath no propinquity to the defunct, pretending a right by tailzie, may officiously infeft people with an action ad deliberandum; 2do, The defenders offer to prove that there is a nearer heir male than the pursuer, and therefore no process can be sustained at his instance; 3tio, Though the pursuer were the true heir male, yet there is no place for this action at his instance; because he hath already immixed himself and behaved as heir, by disponing the subject to which he could succeed, 1. 19. C. de jure deliberandi, which subjects him to the defunct's debts equally as if he were served heir; and he who cannot repudiate needs not to deliberate.

Answered for the pursuer, Action ad deliberandum is a privilege competent to every kind of heir, Stair, lib. 3. tit. 5.; and the reason of the thing holds equally strong in favour of an heir male as of a lineal heir; because, though the latter be liable to debts primo loco, yet he being discussed, the heir male and of tailzie is liable subsidiarie et secundo loco; yea there may be debts wherewith the heir male and of tailzie is liable subsidiare et secundo loco; yea there may be debts wherewith the heir male or of tailzie is directly burdened without any relief from the heir of line; 2do, It is jus tertii to the defenders to object a nearer heir, seeing he doth not compear to exclude the pursuer; 3tio, Behaviour as heir is a passive title which none can incur but such as are alioqui successuri; therefore it cannot be pleaded that the heir male hath behaved, until it appear from the exhibition that he would have succeeded to the subject he is alleged to have immixed himself with. Besides, non relevat, that he hath behaved as heir to exclude this process, it being only competent to creditors to found on such a passive title, Stair, lib, 4. tit. 33.; and though he were by the behaviour passive liable to them, he must have the privilege of this action ad expiscandum, if it be convenient for him to enter heir, in order to acquire an active title to pursue for every thing tailzied to him by the defunct, and found his relief against the lineal heir of all debts wherewith the tailzied estate is not expressly burdened.

The Lords found, That an exhibition ad deliberandum is competent to all kinds of heirs, and that the pursuer's immixing doth not deprive him of his jus deliberandi; but sustained the defence that there is a nearer heir male than the pursuer, to exclude process at his instance.

Fol. Dic. v. 1. p. 283. Forbes, MS. p. 25.