Found, that the heir-general is liable to relieve the heir of conquest.
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*** See, as explanatory of this case, a prior question between Samuel Brown and Peter Blackburn, voce Passive Title.
The pursuer having failed in obtaining relief from Mr Blackburn, as intromitter with the personal estate, insisted against Mr Patrick Brown, as heir-general to the deceased, and consequently liable to relieve the heir of conquest from all obligations not immediately affecting the subjects falling under the succession of the latter.
Pleaded in defence; The grandfather of the deceased left four sons. The defender represents the eldest; the pursuer the second; the defunct was the son of the third; and there was likewise a fourth son, who had issue. As by the law of Scotland the heritage or general representation of the deceased brother or uncle descends to the next younger brother or uncle; the representative of the fourth son, and not the defender, who is the descendent of the eldest brother, is heir of line to the deceased. In England again, the law of which regulates the succession in the island of Jamaica, as the real estate of every denomination goes to the eldest brother, the defender, in place of being obliged to relieve any other heir, would be entitled himself to the succession.
Hence, as matters stood at the predecessor's death, the period when rights of succession are finally ascertained, the present claim was altogether incompetent; nor ought the extraneous circumstance, of the defender's having a residence in Scotland, to subject him to that right of relief, which the peculiarity of the law of this country indulges to heirs of conquest.
Answered; In whomsoever the general representation of the deceased is vested, that person must be liable primarily to all his debts. Heirs of a particular denomination, such as conquest, provision, marriage, or heirs-male, who succeed to the subjects specially devised to them, either by provision of law, or the destination of the proprietor, are considered, with regard to him, as singular successors, and their several interests admit no defalcation, while he who is held to be eadem persona cum defuncto is possessed of effects sufficient for their relief.
Nor is it of importance in the present question, that by the law of England, the defender is entitled to the whole real estate; nor that, by the law of Scotland, the descendants of a younger brother would have excluded them from the succession. As of all those who enjoy any part of the predecessor's estate, he alone is entitled to the character of heir-general, every burden which is not of its nature applicable to the estate falling to the particular heirs, must affect him only.
The Lords repelled the defences.
Lord Reporter, Hailes.Act. Rae.Alt. David Armstrong.Clerk, Home.
Fol. Dic. v. 3. p. 256. Fac. Col. No 67. p. 105.
