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John Adair v Robina and Jean Adairs. [1787] Mor 3992 (19 January 1787)
URL: http://www.bailii.org/scot/cases/ScotCS/1787/Mor1003992-014.html Cite as:
[1787] Mor 3992
Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. I.
Competent to all sorts of heirs.
John Adair v. Robina and Jean Adairs
Date: 19 January 1787 Case No. No 14.
Exhibition ad deliberandum, competent on the title of apparency in an heir-male.
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John Adair, as heir-male to his brother, insisted in an action of exhibition ad deliberandum, against Robina and Jean Adairs, his nieces, who had been served heirs of line to their father; alleging, in general, that the lands which belonged to the deceased had been devised to heirs-male.
Pleaded for the defenders: In order to warrant such an action as the present, some writing or deed must be produced, or particularly condescended on, whereby the heirs-general have been excluded, and those of a different description brought into their place. Unless there is probable ground for supposing that a deviation from the ordinary rules of inheritance has occurred, it is only competent to the heirs of line. Erskine, book 3. tit. 8. § 51.
Answered; The jus sanguinis, or the relation to the ancestor, in any of the characters recognised by law, whether as heir of line, of conquest, or heir-male, is alone a sufficient title for carrying on an action of exhibition ad deliberandum. If it were farther necessary, to produce some writing, devising the estate to the particular order of heirs, or even to describe it in a special manner, this form of law, introduced in favour of apparent heirs of every denomination, might be altogether frustrated; because the persons against whom the action is brought may be possessed of all those documents which regulate the succession. Stair, iv. 33.; Bankton, vol. 2. p. 324.; Erskine, book 3. tit. 8. § 56.
The Lord Ordinary found, ‘That the pursuer had no title to insist in the action, in respect he had neither produced nor condescended on any writing or deed devising the estate to heirs-male.’
After advising a reclaiming petition, with answers, ‘the Lords altered the interlocutor of the Lord Ordinary, and remitted the cause to his Lordship to proceed accordingly.’
Lord Ordinary, Swinton.Act. Geo. Wallace.Alt. Geo. Fergusson.Clerk, Home.
Fol. Dic. v. 3. p. 196. Fac. Col. No 300. p. 464.
