Act 14th, Parl. 1617, relative to retention of a Third.
Lady Inchdarnie v. Alexander Naper
1686.
March. Case No. No 104.
A relict being executrix nominated, has no right to a third of the dead's part.
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In the reduction of James Stuart's testament, at the instance of the Lady Inchdarnie, his nearest of kin, raised after that Alexander Naper had recovered several sums therein, by virtue of a right from Catharine Naper the defunct's mother and executor, the Lords reduced the testament, because the witnesses inserted deponed, that they subscribed it without seeing the defunct subscribe.
Thereafter Naper founded on a prior holograph testament, wanting witnesses, bearing date a year after the defunct was fourteen years of age.
Alleged for the pursuer; That the testament is presumed to have been made by the defunct ante pubertatem, when he had not testamenti factionem, unless the user would prove it was subscribed after pupillarity, for the same reason that holograph writs non probant datum, and are presumed to have been done on deathbed contra heirs; now, the nearest of kin is hæres mobilium.
Answered; A holograph testament was never quarrelled upon such a head; and the same objection might be made, though the testament had borne a date after majority; besides, the means whereby the objection of deathbed, proponed by an heir, is taken off, viz. the proving that the party had the holograph bond in his hand, while the granter was in liege poustie, could not be effectual in the case of a testament; for it was delivered after the testator was fourteen years old, and might have been signed when he was under that age; whereby no holograph testament would be of use except witnesses saw it signed after pupillarity.
The Lords sustained the allegeance against the holograph testament, unless the executor will prove, that it was signed after the defunct's pupillarity. But this testament being founded on after the other was reduced, it was the more suspect. Castlehill's Prat. tit. Executry, No 99. See Writ.
1688. January 27.—A relict pursued as executrix, craved a third of the dead's share as a stranger, viz. one not of blood to the defunct, in so far as her relation being dissolved by death, she was in the same condition as if she had been named before the marriage; and, by the ancient law, the whole dead's part belonged to all executors, qua tales, which, by the late act of Parliament, is restricted to a third in favours of strangers. 2do, Though she had a share jure relictæ of moveables and bonds not bearing annualrent, yet she has no interest in the fee of sums bearing annualrent, in respect of which she is considered as a stranger.
Answered; The reason for allowing a third to strangers and executors only, is, because such would not probably put themselves to the trouble of executing another testament without some benefit; whereas a relict-executrix has sufficient encouragement to do it, by her legal third's depending on the confirmation, and so cannot be considered as a stranger; and the speciality of bonds bearing annualrent doth not alter the case, seeing she has her share of the annualrent of these, and consequently an interest to confirm.
The Lords repelled the defence in respect of the answer. Quær. If a wife having renounced her legal provisions, or a child forisfamiliated, who had renounced his legitim, or any other who had renounced their interest of nearest of kin, must by the consequence of this interlocutor be considered as strangers? Castlehill's Prat. tit. Executry, No 110. See Appendix.
Fol. Dic. v. 1. p. 278. Harcarse, (Executry.) No 469. p. 128. & No 476. p. 130.
