Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Douglas
v.
Douglas

Date: 19 July 1763

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A man made a testament in the East Indies, wherein he nominated his brother and sister heirs, each of the half of his moveables; and he bequeathed to his sister, over and above her share, a small tenement of land, which he believed was his own, but which truly belonged to his brother the co-heir, he having inherited it from his mother.

The Lords found, upon the authority of Papinian L. —, de Legat. 1, That the brother could not take his half of the succession without conveying the tenement of land to his sister; and, he refusing to do that, they found that he must repudiate the one half of the moveables, the consequence of which was, that, with respect to that, the defunct died intestate, and therefore it divided betwixt the brother and sister, so that the sister had one half ex testamento, and a fourth by the legal succession ;—dissent. Alemore, and three or four more, who thought that the testament should be set aside altogether.

This altered, the 11th August.—But the Lords altered again, and returned, almost unanimously, to the first interlocutor.