Subject_1 FORUM COMPETENS. Subject_2 DIVISION VII.
Testament within what District it must be Confirmed.
Commissaries of Edinburgh v. The Commissary of St Andrew's
1684.
February. Case No. No 61.
Although a person die abroad, if he did not reside there, animo remanendi his executry must be confirmed in the district where he had chiefly resided.
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In a competition betwixt the Commissaries of Edinburgh and St Andrew's, for the power of confirming the testament of a Scots skipper, who had gone upon a voyage to Holland, where he died before his return;
Alleged for the Commissary of St Andrew's; That the benefit of the confirmation belonged to him, in respect the defunct's wife and family lived in St Andrew's.
Answered for the Commissaries of Edinburgh; That Edinburgh was communis patria, and the skipper being 40 days abroad, is presumed to have fixed his domicil in Holland.
Replied; By the act 88, Parl. 6th, James I, the testament of Scotsmen dying before their return from abroad, whither they had gone sine animo remanendi, are to be confirmed before their ordinaries; for though goods in Scotland belonging to strangers and foreigners, are to be confirmed by the Commissaries of Edinburgh, as communis patria, whether the owners died there or elsewhere; yet it is otherwise with Scots subjects, who go abroad sine animo remanendi; and the skipper's family in Scotland took off all presumption of a design to set up in Holland.
‘The Lords preferred the Commissary of St Andrew's.’
Fol. Dic. v. 1. p. 331. Harcarse, (Executry.) No 459. p. 125.
