Act 14th, Parl. 1617, relative to retention of a Third.
Ker v. Ker
Date: 28 November 1676 Case No. No 102.
Executors-dative qua nearest of kin have no right to a third of the dead's part. See No 34. p. 3498.
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John Ker, as having right by assignation from Robert Ker, and also as having the gift of the escheat of Mark Ker, and being confirmed executor-creditor to Mark, pursues Jean Ker as executrix confirmed to James Ker her brother, for payment of the shares of the executry befalling to Robert and Mark Kers. The defender alleged no process upon the pursuer's title as executor-creditor, because it is posterior to the summons. It was answered, That he having pursued ab initio upon the gift of Mark's escheat, and finding, by the defences, that a part of the executry was bonds bearing annualrent, without a clause of infeftment, which falls not under escheat, he did confirm, and which the Lords ordinarily allow.
The Lords sustained both the titles.
The defender further alleged, That Mark could have no share, because he died after confirmation of his brother's testament, but before execution; and there being no place for representation in moveables, none representing him can have interest. 2do, The escheat can only extend to what was established in Mark's person, and not to an action against the executor, upon the interest of nearest of kin. It was answered, That albeit there be no representation in moveables, so that those who die before the defunct can have no right; yet those who survive the defunct have the right of children, and the right of nearest of kin, whereby all executors are liable to them for their share, and as to their interest, they neither need nor can do more; but they, or those representing them, may at any time pursue therefor. 2do, Whatever belongs to defuncts, if moveable, whether obligation or action, it falls in their escheat.
The Lords repelled both these defences; and found, that albeit Mark died after the confirmation, and before execution, the pursuer, as executor or donatar to his escheat, had right to his share.
The defender further alleged, That as to Robert's share, he had discharged the same by a minute of contract produced. It was answered, That the minute was null wanting witnesses, and exprest nothing of the discharge of James's executry, but only of the executry generally. It was replied, That, by a back-bond produced, it is evident that Robert's assignation is without a cause onerous, and therefore the cedent's oath is relevant against the assignee.
Which the Lords sustained.
The defender alleged further, That she had right to a third, for executing the office, by the act of Parliament.
Which the Lords repelled as competent only to strangers when executors nominated, whereas the executrix was executor-dative, and one of the nearest of kin. See Quod ab Initio. Vniosum.
Fol. Dic. v. 1. p. 278. Stair, v. 2. p. 467.
*** See This case by Dirleton voce Nearest of Kin.
