Collation takes place only among brothers and sisters, and not when they compete with the relict.
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Janet Ross, daughter to Archibald Ross, baxter in Edinburgh, pursues Marion Kelly, relict of the said Archibald, as executrix and universal legatrix left by him, to make payment to him of her bairns-part of gear, viz. the third of the whole gear contained in the defunct's testament confirmed, seeing she was the only bairn of the said umquhile Archibald her father; in this process the Lords sustained the pursuer's action, for her third part of the saids goods confirmed, albeit the defender had confirmed the testament wherein the goods was parted, only by a twofold division, viz. betwixt the relict for her own half, and the defunct's half; and found, that albeit this testament so authorized, with this division done by a Judge, was a decreet, which was alleged could not be taken away by this manner of process without reduction, yet that the pursuer needed not to reduce, but the pursuit might come in hoc ordine without reduction, seeing she was not called to the confirmation; and also found, that albeit the pursuer was married by the defunct her father, in his own time, and tochered by him, yet thereby she was not secluded from the legitim portion, which fell to her by her father's decease, the same not being discharged the time of her contract and tochering; for albeit that might have been a cause to have debarred her from her legitim as thereby being forisfamiliate, if there had been any more bairns unprovided, yet there being no bairns but herself, it was found no cause to exclude her from that portion against the relict, but that the testament ought to have a three-fold division; neither was it found, that the pursuer ought to offer, and give in the tocher received, with the rest of the goods confirmed, to be divided therewith; but it being alleged, that the goods confirmed were exhausted by decreets, obtained by the defunct's creditors. This allegeance was sustained, to exclude the third, so far as the debts should defalk; but it is here to be considered, that the special reason of this division was, because the pursuer's contract of marriage, whereby the father had given her a tocher, bore, “That the father gave that sum to her, for satisfying her of her right, which she had to her mother's goods, the first wife of her father, to whom he acknowledged, that she was executrix:” And so the tocher was not given ex patrimonio patris.
Act. Nicolson & Lawtie.Alt. Stuart & Mowat.Clerk, Hay.
Durie, p. 282.*** Spottiswood reports the same case:
In the action betwixt Ross and Lilly, the one being her father's only child, pursued the other that was relict for the dead's third, and her own likewise. Alleged, The testament was divided only in two parts, likeas it could not be otherwise, because the pursuer was tochered in her father's time, and so forisfamiliate. It was found, That notwithstanding of the tochering, she had not renounced the benefit of her legitim, which was due unto her after her father's decease, especially there being ho other child. And where it was alleged, that she behoved then to confer, it was thought that collation should only be among brethren or sisters, and not betwixt these parties.
