In what Situations a Bastard enjoys the Power of Testing.
Wallace v. Muir
Date: 7 July 1629 Case No. No 9.
If a bastard obtain from the King, power of testing, the legatary will be preferable to the donatary of bastardy.
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In a special declarator of bastardy, it was found, That the relict of the bastard had good right to the equal half of the bastard's goods, desired to be declared; and that the donatar had not right to the whole goods, but only to the other half thereof: Also the bastard having testamenti factionem, by grant from the King, and having made a testament in writ, and having thereafter left a legacy of 200 merks to his wife, whereby she claimed right to that part, at least to 100 pound thereof, whereunto she retrenched the said legacy: It was found, That the leaving of this legacy, after he had made testament, might be proven by witnesses, albeit the legacy was of a greater quantity, seeing it was restricted to 100 pounds by the legatar. See No 5. p. 1347.
July 9. 1629. In this action, mentioned 7th July 1629, it was found, that an heritable bond bearing annualrent, made by the debtor to the bastard, came under the general gift of the said bastard's gift of bastardy, gifted to the donatar; and that there was no necessity that the bond, or such others of the like nature, should be gifted by any particular gift of the same in special; likeas another donatar who had a special gift of that heritable bond, whereupon that declarator was sought by this general donatar, after general declarator obtained and decerned, upon the said gift of before, compearing and alleging, that he only should be preferred to that heritable bond by virtue of his gift thereof; this allegeance was repelled, and this heritable bond, and such others (whereupon no sasine followed) was found might be gifted by such general gifts, without necessity to express the same specially therein; and so by this decision, it would seem that an heritable bond should likewise fall under simple escheat by horning, as it is found here by bastardy. See Gift of Bastardy.
Clerk, Gibson.
Fol. Dic. v. 1. p. 93. Durie, p. 457. & 459.
