Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Captain Wishart
v.
The Bishop of Edinburgh

Date: 2 December 1674

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Captain Wishart, as executor and nearest of kin to his father, the deceased Bishop of Edinburgh, did pursue the present bishop for the whole quots of testaments which fell during the deceased bishop's lifetime; as likewise during the ann after his father's death.

It was alleged for the bishop, who had likewise intented a declarator, that no such quots could fall under executry, or within the ann:—that, as to these quots that fell during the bishop's lifetime, they could not fall to the executor, unless they had been confirmed, because they were only due to the bishop ratione officii; and the law did give the same, for that special reason, that he did administrate and interpose his authority for the preservation of the defunct's goods; which reason ceasing, and he being at no pains, nor did officiate, he could crave no benefit thereof; but the same ought to belong to the succeeding bishop, who did interpose his authority, and confirmed the quots of testaments, being of their own nature but casual, which might fall or not fall, were not of the nature of annualrents out of lands or teinds; and so could not be estimated to be a part of the rents and benefice.

It was replied for the executor, That the quots of testaments being a part of the bishop's benefice, to which he was presented, did necessarily belong to him, as well as any other rents of his benefice; which falling due during his lifetime, he hath that same right thereto, as to the rents of any other part of the benefice; and he dying, not uplifting the same, it did fall under executry, as was decided lately in a case betwixt the executors of Fairfoull, Bishop of Glasgow, and the succeeding bishop: and the quots of testaments being due by the death of any person within the diocese, is no more a casualty, but in law is due to the Bishops, whether it be confirmed or not; he having no more right to any other part of the benefice than to these quots.

The Lords, by their interlocutor, did find, That the quots of testaments could be only due to the executors of the bishops, if they were actually confirmed during their lifetime,—having found that the late practique adduced was not a decreet in foro, but upon the consent of parties. Thereafter the executors insisting for the quots of testaments during the ann; the Lords, upon the former reason, did find that the quots did not fall under the ann, but belonged to the Bishop who confirmed.

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