Scottish Court of Session Decisions

Subject_1 LEGITIM.

Robertson
v.
Kerr

1742, Feb. 3, June 2.
Case No. No. 6.

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Arniston and I agreed that the pursuer had no claim on the contract of marriage, both because he had no title as creditor, i. e. as heir general to the major, and also because it was implemented to the child; and the substitution did not alter the case as to the pursuer, for had there been no substitution the succession to the moveables would not have gone to heirs but to the child's executors, which would have been an effectual alteration though made on death-bed; 2dly, We also agreed that the pursuer's claim of the child's legitim is good because that was a right not dependant on the father's will, and to which therefore he could not substitute; 3dly, We agreed that the testament was valid though proved not to have been read to the testator before signing in the witnesses hearing, because there was no evidence that the testator did not himself read it with his own eyes Drummore thought there was a good claim on the contract of marriage for the legitim, and thought the testament null. The President thought the testament null, but thought no claim lay either for the legitim or on the contract. Upon the question, the Lords first repelled the reasons of reduction of the testament; 2dly, found that there is no claim to the pursuer as substitute in the contract of marriage; 3dly, found that the pursuer may claim the child's legitim. 2d June, They adhered as to the third point; and 15th December adhered as to the first.