Act 14th, Parl. 1617, relative to retention of a Third.
Douglas v. Lumisden and Hamilton
Date: 6 December 1632 Case No. No 100.
A relict being executrix nominated, has right to a third of the dead's part. See No 104. p. 3928.
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Anna Douglas Lady Cavers, charges the Lady Preston, D. Helen Lumisden, to pay, conform to her bond, that part which by law may fall to Anna, as ane of Whitinghame's sisters, to whom the Lady Preston is executrix nominate, and to add thereto as meikle of her own.—Suspended, Because the dead's part is exhausted, part thereof by legacies, and the rest pertains to the suspender, as executrix nominated; she not being a stranger, and so not subject to the act of Parliament in anno 1617 anent executors, but in the contrary, being one of those in whose favours the strangers are ordained to be accountable.—Answered, Oppones the bond, and the meaning of the act includes the wife as if she were a stranger, so far as concerns the dead's part.
Find the letters orderly proceeded, notwithstanding of the reason.
Relict, now executrix, as she were a stranger, has only the third of the dead's part, and her own relict's part.
Farder against the special charge answered, The third of the dead's part man be defalked, because due to the suspender (as executrix nominated) by the act 1617. Oppones the bond, and that she cannot obtrude any impediment upon any right in her person, because the bond bears to pay, notwithstanding of any impediment may occur.
Find the third due to the suspender, and should therefore be defalked.
Fol. Dic. v. 1. p. 278. Nicolson, MS. No 131. p. 93.
