Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 23 February 1682
David Forbes and Catharine Clerk, his Spouse, v. Sir John Clerk of Pennycuick
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Mr David Forbes, advocate, and Catharine Clerk, his spouse, pursuing Sir John Clerk of Pennycuick, her brother, for their mother's executry; Catharine having confirmed herself executrix ad omissa et male appretiata, Sir John Alleged, That, after the mother's death, the father had provided the said Catharine, now pursuer, to a very opulent tocher often thousand pounds; and, seeing debitor non prwsumitur donare, it must be presumed to have been applied by the father debtor to be in satisfaction of the mother's executry in the first place.
Answered,—This brocard doth not hold between parents and children.
The Lords, on Forret's report, repelled the defence against exhibition, and ordained Sir John Clerk to produce and exhibit his father's count books, by which it might appear what his estate was at the time of his wife's death, that her executry might thereby be known and valued.
