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Scottish Court of Session Decisions >>
James Paton Petitioner. [1785] Mor 4071 (24 July 1785)
URL: http://www.bailii.org/scot/cases/ScotCS/1785/Mor1004071-029.html Cite as:
[1785] Mor 4071
Factor appointed by the Court of Session. - Act of Sederunt 1611.
James Paton Petitioner
Date: 24 July 1785 Case No. No 29.
Factor for an heir apparent appointed by the Court of Session, may make up inventories in terms of the act 1695, c. 24.
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The petitioner having been appointed by the Court to manage, in the absence of an apparent heir, the heritable estate of a person deceased, applied to be authorised to make up inventories in terms of the act 1695, c. 24.
A difficulty arose from the manner in which this statute is expressed, enacting, “That for hereafter, any apparent heir shall have free liberty and access to enter to his predecessors cum beneficio inventarii, or upon inventory, as use is, in executories and moveables; allowing still the said apparent heir year and day to deliberate, in which time he may make up the foresaid inventory, which he is to make up, upon oath, full and particular, as to all lands, &c. to which the said apparent heir may or pretends to succeed, which inventory, to be subscribed by him before witnesses, shall be given in to the clerk of the shire,” &c.: From which words it might be thought that the legislature required, in the execution of this formality, the personal interposition of the apparent heir himself.
The Lords, however, were clearly of opinion, that the petitioner was, from the nature of his office, sufficiently empowered, in the place of the apparent heir, to fulfil the directions of the statute. But they refused the petition, considering this as an act of administration which the factor ought to perform, without any special authority from the Court.
For the Petitioner, Ro. Craigie.Clerk, Campbell.
Fol. Dic. v. 3. p. 203. Fac. Col. No 224. p. 350.
