Scottish Court of Session Decisions

Subject_1 MINOR.

Wauchope
v.
Wauchope

(1736.) 1738, Dec. 10.
Case No. No. 6.

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The Lords generally thought that administrators cannot settle their constituents succession, though their necessary or reasonable deeds of administration may have the effect of altering the succession, as taking securities upon land, leading adjudications, lending money upon annualrent (before the act 1641 as to heirs, and since that time quoad jus mariti et relictæ) but cannot make destinations of succession by secluding executors without the knowledge and consent of their constituents, though some seemed to differ as to that; but most of us thought that Niddry's knowledge of his Commissioners1 resolution in their sederunt-book would be a good defence; (and I and others thought his knowledge presumed from his letter in March 1722) and therefore gave a diligence for proving such knowledge even by witnesses; wherein we had the less difficulty, that it was only to support the express approbation of all their resolutions in that letter; but Newhall differed.—29th January 1736.

The Lords found sufficient evidence of the late Niddry's knowledge and approbation of the Commissioners' resolution to change the bonds, and take them to heirs, secluding executors; and therefore repelled the objection reported to us as to old bonds changed, and money new lent out. Third point, of money laid out on heritable security lies yet before Lord Newhall, Ordinary. Newhall, Minto, and Balmerino, dissented from the interlocutor, 24th July.—10th December, Unanimously adhered.