Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. V.
Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?
Leslies v. Abercrombie
Date: 27 December 1776 Case No. No. 41.
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Abercromby, after his wife's death, being pursued by her nearest of kin for her share of the goods in communion, and particularly for the half of the sum in a bond of provision granted by the wife's father, but which he, together with his wife, had renounced for a new security taken payable to himself and his heirs, of which the term of payment was not yet come, the defender pleaded, That his wife having left a son, who survived her a few days, the right transmitted ipso jure to the child; and although he died before confirmation, the father's possession as administrator for his child, was equivalent to a confirmation, and therefore the father's right to the sum in this bond, as nearest of kin to his son, must exclude the right of the pursuers, as nearest of kin to the mother. Answered, Possession supersedes the necessity of confirmation only where there is an actual apprehension of the ipsa corpora of moveables; but there can be no possession of the sum in a bond, of which the term of payment had not arrived. The Lords repelled the defence. See Appendix.
