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My Lord Dirleton having disponed his lands to young Craigentinny, reserving his liferent, and having died after a part of the mansed lands were sown, and before the barley-seed was cast in the ground:
In a competition for the crop betwixt Craigentinny and Dirleton's daughter his executor, alleged for Craigentinny, That, by the common law, usufructuarius hath no right to the fruits, which are pars fundi, nisi perceptione et post separationem; and though our practique hath fixed upon legal terms of Whit-sunday, &c. before separation, yet the party dying before that term, ought to have no more right to the fructus pendentes, than was allowed by the common law to one dying ante separationem; 2do, Our practique hath relaxed this, and given the benefit of the mansed lands sown before his death; but the profit of lands not sown, or teinds thereof, ought not to belong to the liferenter's executors, but only the expenses of labouring.
Answered for the Executor, Our customs vary from the civil law; for, although a person live after Michaelmas, the time of separation, yet, if they die before Martinmas, they lose that term, &c; 2do, This is not a liferent by constitution, but by reservation, which is more exuberant; 3tio, By the custom of the Commissary Court, the crop of mansed lands, both sown the time of the decease or thereafter, are confirmed in favour of children executors, and is called the executry crop; 4to, The practique 1679 is but a single decision.
