Scottish Court of Session Decisions

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

Spence
v.
Millar

Date: 15 January 1650

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In the action, Spence against Millar, pursued by Spence, relict of Archibald Wauchope, as executrix dative surrogated ad omissa et mala appretiata, as her umquhile husband was, for the goods left out or undervalued in umquhile John Wauchope's testament by umquhile Margaret Liddell, his executrix and spouse, who was married after to William Millar, and which William Millar is confirmed executor to her: decreet was given against him, pro interesse; who has suspended upon that reason, That the said umquhile Margaret her inventory of testament is exhausted. Whereunto it is replied, That the suspender, Millar, was locupletior factus, in respect that he got all her goods and gear which she had by her first husband, John Wauchope. To the which it is answered, That she could have but a third of his means, and the same very little, seeing that same testament is exhausted with the debts; so she could not make her second husband locupletior; likeas her testament also is far exhausted. It is here to be adverted, That the foresaid reply of locupletior ought not to have been proponed, as I think, in respect the charger's title ran upon another ground; that was, a surrogation of executry ad omissa et male appretiata. But it seems they have not followed out the probation of that their interest; but, pursuing Millar, as executor to Margaret Liddell, who was executrix to John Wauchope, they allege him to have been tutor to this Wauchope's brethren and sisters, and would make him countable for their gear, where Millar propones them to have been entertained by him.

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