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Stevenson pursued Fisher to divide to her the half of her defunct husband's goods. He alleged, That the pursuer had only interest to acclaim the third of the defunct's goods, because he is one of the defunct's debtors, who had bairns on life, and so his testament behoved to receive a tripartite division, whereof the wife could only fall a third. It was answered, That she behoved to have an half unless the defender would allege, that that either the testament was formed with a three-fold division, or that the bairns were yet on life; notwithstanding whereof, the Lords found the exception relevant.
