Scottish Court of Session Decisions

Subject_1 HUSBAND AND WIFE.

M'Whirter
v.
Miller

1743, July 20.
Case No. No. 18.

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A Man's Wife died in 1715, leaving a son then about nine years of age, who lived till 1730 or 1731 and died, and some years after the sister of the deceased's wife sued Miller the husband for the wife's third of his moveables. The defence was, that the son of the marriage lived after his mother fifteen or sixteen years, during which the whole moveables pertaining to the father, which were none other than his outsight and insight plenishing; corns and cattle were all oharged; that the father as administrator-in-law to his son having disposed of the moveables, was accountable therefor to his son, and which obligation being in hæreditate of the son descends to his nearest of kin, and he has bequeathed the same to his father, who is also his nearest of kin. This case was well and full argued for the father by Lord Advocate and Mr Grant, to whom it was recommended by the Court to assist Mr Andrew M'Dowall, and by Mr Charles Erskine and Mr Lockhart for the pursuer, and was the 20th July argued fully on the Bench for two hours,—and at last it came out that the wife died only in 1735, when the son was about 18 or 19 years of age, and the question was put first. Whether a wife's children attaining possession of her third of her husband's moveables needed confirmation to bar the claim of any after nearest of kin? and it carried by a great majority that confirmation was not necessary. The next question was, Whether there was sufficient ground here to presume such possession?' and it carried that there was As to this last my opinion was, that the whole being disposed of during the son's life, he became liable to his son for the value, which was sufficient, and that the father disposing was the same as if the son had disposed. 2d November, Adhered as to the first point.