Subject_1 HEIRSHIP MOVEABLES. Subject_2 SECT. III.
In what cases not claimable.
Agnes Goodlet v. George Nairn
Date: 8 December 1668 Case No. No 32.
A wife predeceasing, her third of her husband's moveables found not to comprehend the best of each kind which were set aside asheirship moveables. See No 33. infra.
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Agnes Goodlet, as representing the umquhile wife of George Nairne, pursues for the third of the moveables belonging to him the time of his wife's decease. It was alleged for the husband, That, before division, the heirship moveables behoved to be drawn. It was answered, That there could be no heirship of a man that was living: It was answered, That albeit there was no actual heirship, yet the best of every kind was heirship moveable, wherein the wife bad no interest.
Which the Lords sustained, and ordained the heirship to be first drawn.
Fol. Dic. v. 1. p. 366. Stair, v. 1. p. 568.*** Gosford reports the same case:
In a pursuit at the instance of Agnes Goodlet, as executrix and nearest of kin to Elizabeth Goodlet, against George Nairne, bailie in St Andrews, for delivering of a bond of 1000 merks granted to the said Elizabeth, and of a decreet recovered thereupon, upon this ground, that the bond bearing an obligement to pay annualrent, by act of Parliament the husband could have no right thereto; the defender was assoilzied from delivery, because there being a decreet recovered against the debtor upon the bond at the wife's instance, and the defender, who was her husband, for his interest, and a precept for payment, the Lords found that the debt did belong to the husband jure mariti, being made moveable, as said is. In the same action it being craved by the pursuer, that she might have light to a third of the whole moveables which were possessed in common by the husband and wife at the time of her decease, without respect to the moveable heirship, which they alleged could not be considered till after the death of the husband, the Lords found, notwithstanding, that the moveable heirship ought to be set aside before division; and that, as to moveable heirship, there was no communion betwixt husband and wife.
