In what Situations a Bastard enjoys the Power of Testing.
The Commissioners for the Shire of Berwick, v. Craw
Date: 18 June 1678 Case No. No 10.
A bastard having no lawful issue, has no power of testing; and can neither nominate executors, nor leave legacies, unless he obtain legitimation from the King.
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Umquhile Thomas Bruntfield being a bastard, and having no near relations, did nominate John Craw his executor, and left several legacies to public uses, and specially for building a stone bridge over the water of Blacader, the sum of 4000 merks; and says, That Blacader was owing him 5000 merks, which he appointed to pay George Gordon, and to build. the bridge; and he appointed the Earl of Hume and others to see the same performed; and after several other legacies, by the last words in the testament, he leaves what could be spared after the expences of his funerals, to his executor; who built the bridge without advice of the overseers; whereupon the Justices of Peace in that shire, appointed some of their number to pursue the executor for payment of the superplus of the 4000 merks, over and above what was waired on the bridge, which was but 1000 merks, to be employed for the like and viz. for the building of another bridge.—The defender alleged absolvitor, be having fulfilled the defucnt's will in building the bridge; and what could be spared of the estate, was left to himself; neither was 4000 merks left generally to pious uses, but to build this bridge; which being done, no party had interest to pursue for any further, the defunct's intention being only the bridge; and no part of his estate could be interverted or applied without his will, more than Herriot's notification for an hospital of so many poor boys might have been interverted to a better use, or restricted to their necessity; and there is nothing more religiously observed than the wills of defuncts, by all civil nations; the intervention or stretching whereof, would discourage all such good works; and therefore, thought the pursuit be favourable, there is no law for it, not have the pursuers any interest in it. 2do The defender is not only executor, but is donatar to the bastardy of the defund, who having no children, could neither test nor degate.—The pursuer answered, That this legacy being for a public use, was actio popularis, most proper for the Justices of Peace, who have the charge of bridges; and as to the legacy itself, it is clear, not to be simply for the building of a bridge, but 4000 merks for building of it, which ought to have been all employed on the bridge, to have made it fair; but the defender, without any advice of the overseers hath made it flight; and it cannot be controverted, but the whole 4000 merks might have been wared out upon a bridge there, of a fine structure; and therefore the executor should not lucrari ex sua culpa, but the superplus ought to be disponed for another like pious use: And as to the defence of the gift of bastardy, it ought to be repelled, in respect of the legitimation produced, whereby the King gave tesamenti factionem to the defunct, though a bastard.
The Lords Sustained the process at the pursuers instance, and found, That the executor had no fulfilled the desunct's will, and that the superplus ought to be employed to another pious use; and therefore the Lords ordained the rest to be bestowed upon the other bridge, designed by the Justices of Peace; and ordained the name and arms of the defunct to be put on the bridges; and repelled the defence of bastardy, in respect of the legitimation.
