Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Mitchel v. Mitchel
Date: 23 December 1673 Case No. No 27.
An executor confirming a sum, which was heritable, found not to have thereby homologated the testament so as to be liable for a special legacy of the same sum.
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There being a special legacy left in favours of John Mitchel, of a particular sum in a testament, wherein James Mitchel is nominated executor, who was also heir to the defunct; the legatar pursues him as executor to pay the legacy. He alleged absolvitor, because the sum legated was heritable by infeftment, and could not be legated. It was answered, He having confirmed the testament containing this legacy, without protestation, he had homologated and acknowledged the same, and could not quarrel it.
The Lords repelled the allegeance, and found the confirmation without protestation to be no confirmation of the legacy, to exclude the heir from his right to the sum, such confirmations passing of course without advertance, or search into the condition of the debts.
