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Scottish Court of Session Decisions >>
James Begbie v Sir Charles Erskine. [1792] Mor 5295 (22 December 1792)
URL: http://www.bailii.org/scot/cases/ScotCS/1792/Mor1305295-040.html Cite as:
[1792] Mor 5295
Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.
James Begbie v. Sir Charles Erskine
Date: 22 December 1792 Case No. No 40.
An heir apparent who declines entering, is bound to take a day to renounce, although he should be decerned executor qua nearest in kin to his ancestor.
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James Begbie obtained a decree before the Admiralty Court for payment of the balance of an account against the late Sir Charles Erskine, who brought the judgment under review by suspension.
Sir Charles died, and the action was transferred against Sir William his eldest son, who having also died, it was transferred against Sir Charles Erskine, the present defender, who then became heir apparent to the late Sir Charles his father.
In this action, he contended, that although he did not propose to represent his father and brother passive, he was not bound to produce a renunciation as heir to them, because he was in cursu of confirming himself executor to both, in which character alone he would be able to discuss the charger's claim with safety: That as no inventory of his father's succession had been made intra annum deliberandi, he could not now enter heir to him cum beneficio; a hardship which had been occasioned by no fault of his, as his brother Sir William had survived his father more than a year: That if, in his character of executor, he should establish, that the charger's claim was ill founded, his right to insist either for a decree against him, or for his renouncing, would be at an end; whereas, if he were obliged in hoc statu to give in a renunciation, it would be in the charger's power, after getting a decree cognitionis causa, to attach by adjudication any heritage belonging to the late Sir Charles, although it should afterwards appear that his claim against him was ill founded.
The Lord Ordinary found, ‘That the circumstances of the defender being decerned executor qua nearest in kin to his deceased father and brother, does net afford any ground for exempting him from being subject to the ordinary course of law;’ and therefore ‘he assigned a day for him to give in a renunciation.’
A reclaiming petition for Sir Charles was refused without answers.
Lord Ordinary, Dregborn.For the Petitioner, Dean of Faculty, D. Douglas.Clerk, Home.
Fol. Dic. v. 3. p. 258. Fac. Col. No 9. p. 19.
