In what Situations a Bastard enjoys the Power of Testing.
Muir and Thomson v. Kincaid
Date: 8 March 1628 Case No. No 8.
Found, that a bastard, though not legitimate, may leave tutors to his children, who are to succeed to his effects, and that he may nominate either of them executors.
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Muir, and Thomson, her tutor, contra Kincaid, Muir the pupil, and her said tutor Adam Thomson, who was left tutor testamentar, conjunctly, by the pupil's father, with Robert Kincaid and Alexander Heriot, whom the defunct nominated conjunct-tutors to the pursuer his daughter; the said pupil and Adam, one of the tutors foresaid, pursue the other two, either to accept of the office, to the effect the minor's goods may be administered, and pursuits moved against her debtors by them, or then to renounce the office; and Alexander Heriot, one of the tutors, compearing, and renouncing the office, the other, viz. Robert Kincaid, compearing and contesting, that the minor was not lawfully authorised to pursue this action, being only assisted with one of the three tutors conjunctly given, who ought all to concur; and this pursuit by the minor against her own tutors, ought not to be sustained durante tutela; at least she should be authorised with other curators ad hane litem; and further, he alleged, That the defunct died a bastard, not legitimate, and so had no power to make a testament; likeas Robert Kincaid has obtained from the King a tutory dative. Both these allegeances were repelled, and the pursuit sustained, at the pupil's instance authorised with one, without necessity of authorising by any other concourse, or new giving of curators; and it was found, albeit the defunct was a bastard, and not legitimate, he might leave tutors to his bairns, gotten by him in lawful marriage, and who were to succeed to his means, and whom he might nominate executors; notwithstanding that the defender alleged, that a bastard not legitimate, albeit having bairns gotten by him in lawful marriage, had not testamenti factionem; and that if he nominated his bairns executors to him, yet their succession, and coming to his means, would not be ratione testamenti, but ratione sanguinis, which was repelled; for if the bastard had more bairns gotten in marriage than one, and if he should make one of them his executor, that bairn, nominate executor, would have right only to that which behoved to come to him, jure et ratione testamenti, et non jure sanguinis; for hoc jure sanguinis, they would all succeed alike, and not he alone, who was nominate executor.
But here it is to be also remembered, that there was no declarator upon the defunct's bastardy. See Solidum et pro rata. See Tutor and Pupil.
Act. ——Alt. Nisbet.Clerk, Hay.
Fol. Dic. v. 1. p. 92. Durie, p. 356.
