The nearest of kin of a married woman, and not the agnates of her children deceased, found to have right to confirm her third of the moveables: Not however finally decided.
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The only bairn, surviving both father and mother, being confirmed executor to both, and thereafter dying before all the goods were executed, the nearest of kin to the mother obtains himself executor-dative ad non executa, and pursues for her part of these goods, wherein the nearest of kin to the bairn, claiming the whole right of all the goods, as well not executed as executed, to pertain to him, as for the mother's part, (which was only claimed by the executor ad non executa) in respect that he alleged, That that bairn being the sole bairn of his father and mother, he had only right to the mother's part of the goods, he being the only bairn, and having the only right of succession to her, without division; for albeit the bairn was confirmed executor to his mother, yet that confirmation, which was the only way that gave him a right and title to pursue for the goods, albeit not, executed in his lifetime, yet took not away from him the right of blood and nature, which gave him full right to the total succession, ex asse to his mother, without division; for, in this case, quoad matrem, the bairn, as he succeeds to her in toto asse, which is the legitim, quoad matrem, there being quoad eam nulla divisio vel distinctio assis per partes, where no testament is made by her, so that the confirming of him executor to her, could not derogate to that right of his universal succession, as in other executries, where the executor will not have right to the whole; for, in this case he alleged, That the confirmation of the bairn as executor, is not the confirming, nor giving an office to him, as in other cases, where the confirmation of an executor is but an office, which makes the executor liable to the nearest of kin; whereas, here it is not an office, which another may execute, and become accountable therefor; but the whole right remains with the bairn, and must follow such as may be his heirs; and, therefore, he contended, That, albeit the bairn had not executed the whole goods before his decease, yet there was no place to the nearest of the mother's kin to claim any part of these goods; but the same pertaining to the only bairn, must be transmitted in the person of the nearest of kin to the bairn. This allegeance was repelled; and the right of the goods unexecuted by the bairn was found (so far as might befall to the mother for her third) to pertain to the nearest of her kin, and not to the agnates of the bairn: Thereafter this cause was ordained to be heard in he Lords presence, and was heard, but not decided.
