Act 14th, Parl. 1617, relative to retention of a Third.
Forsyth v. Forsyth
Date: 29 November 1626 Case No. No 98.
Stranger-executors have a third of the defunct's part, for executing the testament; but this is only in case there is so much free, all debts and legacies being deducted. See. No 101. p. 3925.
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In an action at the instance of one Forsyth, one of the bairns of Forsyth, his father's brother, who was left executor by the pursuer's father, for payment to this pursuer, as one the four bairns of the defunct, of his fourth-part of the defunct's third, intromitted with by the defender executor foresaid; the Lords sustained this action at the pursuer's instance, for his part of the said third, without any defalcation to be taken therefrom in favour of the defender, who alleged that he had right to retain the third of the defunct's third, he being left executor to him, in respect of the act of Parliament 1617 anent executors, which provides the same; and that the bairns of the defunct have only right to the two parts of the third; which allegeance was repelled, in respect that the defunct had left in legacy to his bairns all which his own third would extend to, which being so exhausted with the legacies made by the defunct, the Lords found that the executor hoc casu had no right to any part of the third by virtue of that act of Parliament. In this process also the Lords found, that any one of the bairns might pursue for their own part, albeit the rest of the bairns were neither summoned in this pursuit, nor yet assisted the pursuit.
Act. ———.Alt. Rollock.Clerk, Hay.
Fol. Dic. v. 1. p. 278. Durie, p. 239.
