Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Archibald Moncrieff's Bairns
v.
Archibald Moncrieff, his Son

Date: 27 June 1637

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The deceased Mr Archibald Moncrieff, minister at Abernethie, byhis testament, nominates his eldest son, called Mr Archibald, his executor, who confirms the testament; in the which, the testator leaves his haill dead's part to be equally divided amongst his bairns, who were unforisfamiliated. In his executor-account, he craves to be allowed to him the third of the defunct's part, as due to him for his office, conform to the Act of Parliament, Ja. VI, Par. 22, cap. 14. It is alleged for the bairns, That the Act of Parliament has no place where the defunct expressly leaves his dead's part to his bairns, or to any other legator; for the executor, knowing the dead's will by his testament, it was voluntary to him to have accepted the office or refused the same. The Lords found, in this case, the executor had no right to the defunct's third part by the Act of Parliament.

2d MS. Page 79.

Sicklike, the said deceased Mr Archibald Moncrieff, some few hours before his death, gave, to his eldest son, executor nominate to him in his testament, the key of a kist, wherein he told him there was a certain sum of ready money, which he directed him to take to himself, the same not being inserted in his testament. Of the which sum the relict and bairns crave the two part, as due to them, although omitted furth of the testament, seeing the defunct could not, in articulo mortis, dispone or give away any more in their prejudice except the third part of the said money, being his dead's part. The Lords found, That the defunct could dispone or give away no more but the third, which was his dead's part, in prejudice of the relict and bairns.

2d MS. Page 79.