A testament being confirmed, the nearest of kin ipso momenta have jus quæsitum to that part of the goods which belong to them, and do transmit the same to their executors, though the testament has not been executed before their decease.
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In a pursuit at the instance of a donatar, it was alleged, That the debt pursued for was heritable quoad fiscum; and it being replied, That the pursuer had right thereto as executor creditor; the Lords found process upon that title though supervenient, the testament being confirmed after the intenting of the cause.
In the same cause it was found, that a testament being confirmed, the nearest of kin ipso momento have jus quæsitum to that part of the goods which belong to them, and do transmit the same to their executors, and those who represent them; though the testament was not executed before the decease of the nearest of kin; and that the said interest and action, being in effect a legitima, and competent to them by the law and act of Parliament, is settled in their person and doth transmit, though the same be not recovered in their own time. See Quod ab initio vitiosum.
Fol. Dic. v. 2. p. 2. Dirleton, No 389. p. 191.*** Gosford reports this case:
John Ker as executor creditor confirmed to Mark Ker, and as donatar to his escheat, did pursue Jean Ker for the fourth part of the executry of James Ker, to whom the said Jean was confirmed sole executrix, upon that title that the said Mark Ker was one of the four nearest of kin to the defunct James, whose testament was confirmed by the said Jean. It was alleged for the defender, That the pursuer could have no right by any of these titles, because the said Mark himself died before James' testament was confirmed, or any sentence obtained, or established for the fourth part in his person, and so by our law they were in the case of hæreditas non adita, and were transmitted to surviving nearest of kin, who were his brethren and sisters. It was replied, That James Ker's testament being confirmed by the defender before Mark's decease, ipso facto she was liable to him for a fourth part as executor creditor to Mark. It was secundo alleged, That the pursuer could not have a right as donatar to Mark's escheat, because nothing could fall under his escheat but what was actually established in his person; but so it is, he never did obtain decreet for the fourth part, and so it could not fall under his escheat. It was replied, That the fourth part of his brother's testament being a moveable sum, and he dying at the horn, did fall to his donatar. The Lords did repel the first defence, and found that James' testament being confirmed, the defender as executor was liable to Mark for his fourth part and consequently to the pursuer as his executor creditor, as to all sums due by bonds bearing annualrent, but as to all other sums or moveables they found they fell under Mark's escheat, and belonged to his donatar conform to the act of Parliament 1641, and so found that Mark dying, who had never a sentence establishing a fourth part in his person, nor confirming himself, did not take away from his executors his right, which was transmitted to them so soon as his brother James' testament was confirmed.
Gosford, MS. No 910. p. 588.
*** Stair's report of this case is No 102. p. 3926, voce Executor.
