Paterson, and his Spouse, v. Hope and Dougal, and their Spouses
Date: 30 January 1622 Case No. No 2.
Legitim is only of the father's means, not of the mothers, and therefore a woman's children have only right to her moveables, qua nearest of kin, whence it is that they transmit nothing before confirmation.
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John Paterson, burgess of Edinburgh, and his spouse, Galbraith, being executors decerned to umquhile ———, mother to the said Galbraith, who died intestate, pursue Henry Hope and John Dougal, and their spouses, who were executors confirmed to umquhile Thomas Galbraith, which Thomas was brother to the said Paterson's wife, and son to the said ———, their mother, for payment and deliverance to them as executors to the said ——, her mother, of the particular goods libelled, pertaining to her the time of her decease, and which were intromitted with by the said Thomas her son after her decease, and therefore that his executors should be decerned to restore the same to them as being executors decerned to her, as said is. The defenders alleged, That the said goods pertained to Thomas, and consequently to them his executors, seeing the mother in her own lifetime made assignation to the said Thomas her son, of her whole goods, with provision that the said Thomas should pay her debts; according thereto, Thomas having intromitted in his own lifetime, and having satisfied her creditors, the said assignation as it would have defended Thomas himself, if he had been pursued in his own lifetime, far more must it defend these excipients his executors. No action being moved against him, whereby that assignation was quarrelled while he lived, he surviving diverse years thereafter. The Lords found this exception relevant to elide this pursuit, albeit it was replied by the pursuer, that the assignation, which was the ground of the defender's exception and right, could not be found valid to have defended the assignee, far less his executors, seeing it was an assignation made by the woman in articulo mortis, she having deceased within two days after the making thereof, and whereby libera testandi facultas tollebatur et erat assignatio omnium bonorum; which being sustained, would tend to a dangerous preparative, both to defraud creditors, and to defraud the bairns of their portions, and to prejudge their executors, and also the quot, and that there needed never any testament to be made thereafter; and if the Lords should incline to sustain that assignation, in respect of that clause insert therein, ordaining her debtors to be paid, and that it might appear thereby that none were prejudged, seeing there was no bairns unforisfamilitate the time of the woman's decease, and albeit there had been any, yet the bairns by their mother would fall no portion natural; it was answered, That the like provisions might be insert in all assignations hereafter, if such writs should be sustained as lawful, and the most that the assignation could be found good for, behoved only to be for so much of the defunct's means, as might correspond to satisfy the debts owing by her, and which were satisfied by the assignee; but for the oveplus thereof, the same behoved of all reason to pertain to the executors of the woman, who could never have prejudged her executors by that deed; and albeit the bairns could have no legitim by her, yet they were her executors of the law, whom she could not hurt by that assignation, made at that time of her death, and in manner foresaid; notwithstanding of all which answers, the Lords sustained the assignation, and exception founded thereupon, for the whole goods of the defunct, albeit the same exceeded the whole debts owing by her, in respect also the defender offered to prove that the assignee had paid in his lifetime a part of the tocher owing by the woman's cedent to the same pursuers, whereby it was inferred that it was a tadit ratification of the assignation done by the pursuer's mother.
Act. Peebles, Henderson and Daling.Alt. Hope.Clerk, Gibson.
Fol. Dic. v. 1. p. 543. Durie, p. 12.
*** See a similar case, 17th February 1663, Forsyth against Paton, No 6. p. 2941, voce Condition.
