An only child being forisfamiliate by marriage, and having got a tocher, but not bearing “in satisfaction of children's part,” was found notwithstanding obliged to collate that tocher with the relict, before she could have access to draw her third share of the defunct's moveables.
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My Lady Frazer, being first married to Sir John Sinclair of Dumbeath, next to the Lord Arbuthnot, and last to the Lord Frazer, Dumbar of Hemprigs, as executor confirmed to Dumbeath, pursues her, and the Lord Frazer her husband, for his interest, for delivery, or payment of the moveables of Dumbeath, intromitted with by her. It was answered, That she had right to the half of Dumbeath's moveables, as his relict, and her intromission was within that half. It was replied, That she had only right to a third; because Dumbeath had a bairn of the former marriage, who survived him, and so the executry must be imparted. It was duplied, That that bairn was forisfamiliate, married, and provided before her father's death, and so was not in familia; and albeit, if there had been any other bairns in the family, that bairn's part would have accresced to them; yet being no other, it accresced to the man and wife; and the executry is bipartite.
The Lords found the defence and duply relevant, albeit it was not alleged, that the tocher was accepted in satisfaction of the bairn's part of gear; unless those who have right would offer to confer, and bring in the tocher received; in which case, they might crave a third, if the same were not renounced, or the tocher accepted instead thereof.
It was further alleged for the Lord Frazer, That he could not be liable as husband; because his Lady being formerly married to the Lord Arbuthnot, he got the moveables, and his successors should be liable, at least in the first place.
The Lords repelled the allegeance, but prejudice to the Lord Frazer to pursue the successors of the former husband, for repetition as accords.
Fol. Dic. v. 1. p. 149. Stair, v. 1. p. 181.
The contrary found, 11th December 1719, Lady Balmain contra Lady Glenfarquhar, infra.
