Click here to view a pdf copy of this documet : PDF Copy
James Kennedy executor dative to Robert, his father, pursues his relict for the goods and gear confirmed. She excepts she has retention of the half, because the defunct had no bairns extant the time of his decease, but this pursuer, who is heir, and cannot be both heir and have a bairn's part, and be counted a bairn, to make the testament divide in three, in prejudice of the relict. Simile, if there were more bairns nor the heir, and all forisfamiliate but he, the testament would divide in two only. Ergo, the like where there is no bairns at all by the heir. Replied, the heir is excluded by another, but when there is no other, he is a bairn et facit partem in testamento. The Lords repell the allegeance, in respect of the libel and reply.
Reporter, Reidhouse.Act. Ayton & Fletcher.Alt. Nicolsons, sen. & jun.Clerk, Hay.
Fol. Dic. v. 1. p. 543. Nicolson, MS. No 41. p. 22.
*** See a similar case, 12th January 1681, Trotter against Rocheid, No 12. p. 2375., voce Collation.
