Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

William Baillie
v.
The Heir and Executor of John Jamison

1662. June.

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By a minute of contract, betwixt William Baillie and umquhile John Jamison, William is obliged to dispone a tenement of land to the said John, his heirs and assignees; for which, John obliged himself, his heirs and executors, to pay to William 3300 merks. The said William pursues the relict as executrix, and the heir of the said umquhile John, for payment of the price. It was alleged by the relict, That she and her child, the heir, were willing to pay the money upon a disposition of the land to her in liferent, and to the heir in fee; and the reason why she should be liferenter is, that the price being the greatest part of her husband's estate, and lying moveable by him, she would have had the third part thereof as relict, if her husband had not been obliged to pay the same as the price of the lands: her liferent thereof is scarce a recompense for loss of her third. It was answered, That the allegeance is not relevant hoc loco, but she may agere against the heir. The Lords found the allegeance not relevant hoc loco, and inclined to think, that, if she were pursuing the heir, she should only have a terce of the land, just as if her husband had been infeft therein.

No. 42, Page 31.