An heir cum beneficio may pursue a sale on the act 1695 as apparent heir.
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Patrick Blair, heir: served cum beneficio to his brother Andrew Blair of Corbs, having pursued a sale as apparent heir, an act was pronounced by the Ordinary, before whom it came, in common form; and he now having applied by petition to the Lords, representing that the proof brought was not full, and craving a new diligence, a doubt was stirred on the Bench, How far it was competent for an heir served cum beneficio to pursue a sale as apparent heir; and precedents having been alleged for the pursuer, the case was deferred till this day, that the precedents might be condescended on.
Accordingly two precedents were found, one of the 14th July 1742, Robert M'Doual, second son to Ann Johnston of Kelton, and of John M'Doual of Logan her husband, against the Creditors of Robert Johnston of Kelton, (See Appendix), where, on the verbal report of the Lord Elchies, it was found, “That the said Robert M'Doual, disponee from his mother, who had been heir served cum beneficio to Robert Johnston of Kelton, her brother, was entitled to bring the subjects of the inventory to a sale on the act 1695;” which was a step further, as the pursuer was only assignee from his mother, the heir served. The other was likewise on the verbal report of the same Ordinary, no longer ago than on the 30th July 1748, (No 21. supra), when Andrew Rutherford, merchant in London, as son and apparent heir of Robert Rutherford, brought a sale, as apparent heir to his father, of certain tenements in Edinburgh; and it being objected by the creditors, that the pursuer was heir served cum beneficio, and not apparent heir to his father, and so could not carry on the sale on the act 1695, the Lords found, “That notwithstanding the pursuer was served heir in general cum beneficio to his father, yet it was competent to him to carry on the sale on the act of Parliament 1695.”
The record of both which proceedings being produced in Court, the Lords “Granted the diligence.”
The greatest justice the heir can do to the creditors is to bring the estate to a judicial sale; and in Holland, where the entry of heirs cum beneficio is most frequent, the heir not only may, but must expose all the subjects of the inventory to public auction. Voet ad Tit. De jure delib. § 21.
Fol. Dic. v. 3. p. 262. Kilkerran, (Heir cum beneficio.) No 7. p. 241.
