Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Jo Earl of Haddinton v. The Relict and Creditors of William Gray of Pittendrum
Date: 21 January 1664
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William Gray of Pittendrum, merchant in Aberdein, and provost thereof, dies without any body that can succeed to him in his lands or heritages; because he has none of his own body lawfully procreated; and for his father, he was a bastard, and not capable of succession. By reason thereof, his whole patrimony and estate falls in the King's hands, as last heir, heritably, and by privilege of the crown. This, his Majesty, with the advice of Jo. Earl of Crawfurd and Lindsay, Lords Parbroth and Struthers, his Highness Treasurer, Collector of his Majesty's augmentations of his kingdom of Scotland, and Controller of William Lord Bellenden of Brughton, his Depute in the said offices, and the rest of the Lords of Exchequer, grant, gifts, and dispones, to Jo. Earl of Haddinton; who immediately raises summons against Christian Cullen, the relict of the said William Gray, and his creditors to hear his gift declared. Item, To see it found that he as donatar has undoubted right to all the goods and gear whatsoever that pertained to the said William the time of his decease, and particularly to thir following; divers tenements, (all bounded,) in Aberdein; three half nets of salmon-fishing in the fords of the water of Dee; item, Another net, half net, and the fourth part of a net of fishing in the water of Don; and the Raick of Die, &c. Item, That he shall hold them in that same very fashion of the king, as they held formerly, in all their meiths, marches, and bounds, paying the same blench or feu farm duties they did formerly. There is produced for instructing the summons, the gift of ultimus hæres under the great seal.
It's alleged for the relict and creditors; that no process ought to be sustained at this pursuer's instance in this cause, and that no declarator can pass upon the foresaid gift in his favour; because they offered them to prove, that the said deceased William Gray, his goodsire and goodame, were lawfully married together; and that the said William's father was gotten in lawful marriage, and, therefore, the king cannot be ultimus hæres upon the account the said William's father was a bastard; and so the said gift must fall and be of no avail; Igitur no declarator.
Which allegeance the Lords finding relevant, they assigned a term to the defender's procurators for proving the same; wherein they succumbed, so that the term was circumduced against them, and decreet given forth, declaring that the said William deceased without any person to succeed him; and consequently that his lands, goods, and gear fell to the king; and that now the same pertain to the pursuer as the king's donatar; and that therefore he ought to be answered thereof; reserving always to the relict and creditors all their lawful defences upon their several rights, for any debts, provisions, or other obligements whereby William obliged himself to them; only excludes all defences that may be proponed contra statum personæ.
Act Ja. Chalmers.Alt. Sir Geo. Lockhart, Mr. David Thoirs.
Signet MS. No. 93, folio 34.
