Annat divides between the wife and nearest in kin, where there are no children.
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The said Elizabeth pursued the executors of her husband, and insisted upon several points; first, she craved the annat, as belonging wholly to her, seeing there were no children, and annat being in favours of the wife and children, the nearest of kin could have no part thereof.—The defenders answered, That the annat was introduced the time of Popery, when the (clergy) had no wife nor bairns, and so did still most properly belong to the nearest of kin, who would get it, if there were neither wife nor bairns.
The Lords found the annat to divide betwixt the pursuer and the nearest of kin.
The pursuer insisted next, and alleged, That a bond bearing clauses of annualrent and obligement to infeft, behoved either to give a right to the half of the stock, or else to a terce of the annualrents.
The Lords found the clauses of annualrent and destination, to exclude her from the stock as heritor; and the want of infeftment to exclude her from the terce of annualrent.
The pursuer insisted in the next place, and produced a bond granted by her father to her husband; and here the longest liver of them two, and the heirs procreate betwixt them, without any addition or termination, failing these heirs, and without clauses of annualrents or infeftment; and therefore she claimed the whole sum as being the longest, liver.—It was answered, That this bond did not constitute in her only a liferent, according to the ordinary conception and inter pretation of that clause, the longest liver of them two betwixt man and wife; but especially, heirs procreate betwixt them being mentioned, which behoved to be the man's heirs, who, if they had existed, would have had right as heirs to their father, not to their mother; and therefore the father behoved to be fiar, and the mother only liferenter.—It was further alleged, That beside the liferent, the pursuer behoved to have right to the half of the stock; because the sum being moveable, albeit the tenor of he bond made it payable to the relict for her liferent use, yet she behoved to employ it so, as the stock would remain; which stock would still be divisible betwixt the relict and the nearest of kin, as being moveable.
The Lords found, That the pursuer might take her choice of the liferent, or of the half of the sum, but would not allow her both. (See Heritable and Moveable.)
