Found in conformity with Chapman against Gibson, No 4. supra.
Click here to view a pdf copy of this documet : PDF Copy
One Henderson's Bairns pursuing their mother's second husband, which mother was executrix to her first husband, their father, likeas her second husband was executor to his wife, their mother, for payment to them of their bairn's part of the gear, and of their part of the money pertaining to them, falling by their father's decease, together with the annualrent of the said money continually since the father's decease, and since the time of their mothers intromission therewith; and also for payment of the equal half of the goods and gear contained in their mother's testament, whereto they had right as bairns, and nearest of kin to their mother; this pursuit being moved before the Commissary of Murray, and sentence given thereupon against the defender, viz. the bairn's goodfather, the second husband of their mother, as executor to her, he compearing; which decreet being suspended by him, upon this reason, viz. That he, nor yet his umquhile spouse, could not be subject to annualrents, they being only executors, who by the law are not subject to pay annualrents, specially before sentence, for any terms before they were decerned; and there being nine or ten years betwixt the first husband's decease and the time of the sentence, and also two or three years betwixt their mother's decease and the said decreet, no reason can make either her, if she were living, or him, liable in annualrent, seeing executors cannot be subject, but at most from the time of the sentence; and the chargers opponing, that they having meddled with the monies, and employed the same to their use, and they being but minors all this time, they are excusable not to have pursued more timely for their monies; and the suspenders, and their mother's intromission therewith, ought not to be profitable to them to their prejudice; and they opponed the decreet given against them in foro contradictorio; the Lords, in respect of the sentence given parte comparente, found the letters orderly proceeded, albeit most of the Lords were of different judgments, some thinking that executors are not subject to pay annualrent, specially before sentence; and others were of a contrary judgment in this case, where the bairns were minors, and the mother and father-in-law had intromitted with the money; but because of the sentence standing parte comparente, decreet was given as said is. Item, where the decreet decerned the father-in-law to pay the half of the gear to the bairns, as having right to that half by their mother's decease, the Lords found, that the bairns could not claim the half, because the mother's testament, by whose decease they sought the same, could give them only right to a third of the goods and gear which belonged to her husband convened; for although there were no bairns procreated betwixt the said second husband and her, yet the said husband had bairns living of a prior marriage, who behoved to be reputed to have their own interests, and a third part of their father's goods; and consequently they found the wife's testament should not been confirmed as it was, by a two-fold division, giving the wife the one half, and the husband the other, but that there ought to have been a division in three parts, viz. the wife one third, the husband another third, and the third third to the husband's bairns; so by this decision, the wife and the husband, albeit having no bairns betwixt them, yet where the husband has bairns of another marriage, the wife dying transmits right only to her nearest of kin, to the third part of their gear allenarly; and the bairns of the husband, although not gotten of that marriage, have right to a third fictione juris. For their father living, they cannot have right to any bairns’ part of gear, so long as he lives; but it was reputed as a right in their person, to exclude the wife from any right further than a third, seeing the whole gear being de jure in bonis mariti, and he dominus, it was not thought reasonable to give the wife the half, thereby to exclude the bairns, and to give them no right to their father's gear; and albeit this was considered by the Lords, yet it could not be effectual to give the bairns any right thereto, so long as the father lived; and albeit also the chargers alleged, that seeing the father is living, the bairns could not have right, and that the husband is truly reputed in law to be dominus omnium bonorum, as the party alleged, therefore, with the mere reason, and in law, should his wife have the half of all which he had the time of his decease; which allegeance was repelled, and the wife's part resricted to a third, as said is.
Act. Ja. Gibson.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 543. Durie, p. 728.
