Scottish Court of Session Decisions

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

Balmanno and Chapman
v.
Littlejohn

Date: 18 December 1649

Click here to view a pdf copy of this documet : PDF Copy

In the action of suspension and reduction, Balmanno and Chapman against Littlejohne, who had charged upon a decreet for heirship of a woman named Murray, obtained before the bailies of Perth more than twenty years since, the reason [was,] That she could not have an heirship, deceasing before her husband propter commmionem bonorum inter virum et uxorem: and that the constant practique of all the consistories of the kingdom was to confirm the whole moveables belonging to man and wife, the heirship belonging to the man being deduced: so that the division was made, whether the wife is executors got third or half, without mention of any heirship to her heir; and the interest of heir and executor was to be disputed among them, si ipsa corpora, and not the estimation of these speces, as use is, for the most part,—was confirmed. And it is to be noted, that, if the heretrix had outlived her husband, without question her heir might have had an heirship; and farther, if she had had any goods, which the lawyers call bona receptitia;—Ulp. tit. 6, de Dotibus lib. singulari; et apud Gell. lib. 17, cap. 6;—which are those, that a wife having had one husband or more, might have cepted and retained to herself, by her contract of marriage with her subsequent husband. Even that wife, deceasing before her husband, might have an heirship out of those goods; quia non erat ibi communio bonorum.

There was here alleged a practique, The Laird of Traquaire against Home, for the heirship of Home's wife, called Rutherfoord, being the Laird's near cousin, in the year 1562, cited out of Balfoure's Practiques, Maitland's, and the Lord Culrosse's: Which the Lords did not respect; for the inviolable practique and custom of the consistories, past memory of man, in viridi observantia; and in respect of the confusion that might ensue thereon; and in respect of the late acts anent heritable bonds in favours of the rest of the bairns and nearest of kin by the heir.

Page 99.