Annat found to belong, proprio jure, to nearest in kin, not to an assignee.
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The case of Gilbert Alexander contra Cunningham, was reported by Harcarse. A minister having no children, assigns his annat to his brother's son; his sister competes as nearest of kin, and alleges it was not the defunct's, but being given in the time of Popery, when churchmen were neither allowed wives nor children, it belonged to the nearest of kin.——The Lords found it belonged to the minister's nearest of kin, and not to his assignee.
Fol. Dic. v. 1. p. 36. Fount. v. 1. p. 408.*** Harcarse thus states the same case:
In a competition for a minister's annat, who left neither wife nor child, betwixt his nearest of kin and a remote relation to whom he had legated the same:
Alleged for the nearest of kin: That the annat was not in bonis defuncti but designed by way of charity to the relict and nearest of kin; in prejudice of whom it could not be disposed of by the defunct, or affected for his debt.
Answered: By the act 13. Sess. 3. Parl. 2. Charles I. the annat is mentioned as due to the minister and his executors, and so it is at his disposal.
Replied: The said act 13. clears only what is the annat, and not whom it is due to; and by the act of Parliament 1647, it is due to the nearest of kin: And though the act 13. mentions executors, that is upon supposition that the nearest of kin are executors.
The Lords found the annat to be due to the nearest of kin, and preferred him to the legator.
