Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Christy
v.
Christy

1682. December.

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Mr James Christy having left Jean Christy, his daughter and only child, executor and universal legator, and David Christy, failing her by decease; Jean did execute the testament, and obtain sentences for the defunct's moveables, and died shortly after she had been confirmed executrix and had executed the testament by obtaining sentences for the defunct's moveables; and Mr James's relict brought forth a posthume about nine months after his father's decease, called James, who was served executor to Jean his sister, and pursued by David Christy as substitute to her in the office of executry and universal legacy, to make payment of all Mr James's goods and gear. Alleged for the defender, That, as the father had preferred the defender's sister to David the substitute, it is presumed that he would multo magis have preferred the defender his son; for, by the civil law, ex supernascentia liberorum testamentum rumpitur, and, in substitutione fidei commissaria, the children of the party institute were always preferred to the last substitute, a stranger, or in a remoter degree, and donations were revokable agnatione liberorum. Answered for David Christy, This is a great novelty in our law, where the effects and solemnities of testaments are quite different from what they are by the civil law, in consideration of hæredes sui, and other subtilties, which have no foundation in our custom; and, seeing the father hath not declared his mind as to the supposeable and possible case of a posthume, casus omissus habetur pro omisso. 2. As an infeftment of tailyie to Jean the daughter, and, failing of her, to David, could not have been quarrelled by the posthume brother, though it carried away some part of the heritage, far less can the substitution to the universal legacy be impugned, which only affects the dead's part, the sister's legitime being transmitted to the defender her brother, as her nearest of kin. Here parties are not in the case of the civil law, and the fide commissary institutions; for the sister institute had no children; and the magna pars bonorum was disponed; and transmissio jure sanguinis is only competent to descendants. The Lords, having considered this debate, demurred to determine the cause; but resolved they would hear parties upon this point, if the testament, being confirmed by the sister and decreets taken against the debtors payable to her, did establish the right of the sums in her person, so as they did no longer remain in bonis defuncti, although they were neither paid to her, nor innovated by her? Alleged for the brother, That with us the legitime transmits even before confirmation, which is but modus acquirendi; and though, by the ancient civil law, hæreditas inaudita non transmittitur, yet the jus novum allowed the exceptions of jus suitatis, to which our legitime answers, jus sanguinis, et jus deliberandi; and the nearest of kin having right with us jure sanguinis, it ought to transmit jure sanguinis without confirmation, as was decided, anno 1663, in the case of Bell and Wilkie. Answered for David Christy, That, by the current of our practice, the interest of nearest of kin doth not transmit without confirmation; and executors recovering decreets doth execute testament, so as the office cannot transmit; yet the right of the sums are not established in the person of the executor or legator, unless they be received, or the securities innovated. The parties settled before interlocutor. Vide No. 222, [Cameron, February 1688;] and No. 454, [Henderson against Saughtonhall, March 1683.]

Page 122, No. 446.