Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Robert Millar
v.
Robert Stewart

Date: 19 June 1649

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In the second suspension at Robert Millar his instance against Mr Robert Stewart, charger, for his tocher,—it was found, That the letters ought to be put to farther execution; notwithstanding the reason upon the interest of John Millar, alleged executor confirmed to umquhile Janet Millar, his sister, spouse to the charger; the suspender being administrator to the said John, who is the executor decerned, and willing to compense, and, for liquidation, referring it to his oath; because the charger has many exceptions anent his wife her testament, as that which dips upon the husband's privilege of giving up his debt, till exhaust the inventory. And, because there was a bairn, who lived seven or eight days after the mother, suppose the father was negligent to confirm the bairn executor to its mother, it was excusable in tam recenti luctu. So that it is very disputable, whether the division ought to be bipartite or tripartite. Yet the Lords delay the extracting of any decreet, till the matter anent the testament be discussed before themselves; which they do advocate according to the advocation raised by the charger; and which in the matter of not-liquidation opposes quod per eum steterit.

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