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In an action of suspension, Sibbald contra the Procurator-Fiscal of the Commissariot of St Andrews, the Lords found, that where a man dies, leaving behind his wife with child, who bears a bairn, albeit the bairn should live but one day, that the father's testament-dative being desired to be given up and confirmed upon charges of the Procurator-Fiscal, as use is, and, where there is no testament testamentary, although the said testament-dative should not be confirmed many years after the death of that bairn, who once lived, it should thole and have a threefold division, and that the deceased bairn should not be prejudged in his own third part, nor of no other part of the defunct's third, which might fall to him by the law.
Act. Aiton.Alt. Absent.Clerk, Gibson.
Fol. Dic. v. 1. p. 544. Durie, p. 75.
