Scottish Court of Session Decisions

Subject_1 PART I.

FOREIGN.

Ross and Others
v.
Aglianby

Date: 20 January 1797
Case No. No. 5.

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This case, which is No. 120. p. 4631. was appealed.

The House of Lords, 15th December 1797, Ordered and Adjudged, that the interlocutor of the Lord Ordinary of the 15th of February 1796, in so far as it finds, that in respect Mrs. Lowthian has accepted of a provision of an estate in England, that she is not entitled to claim a terce out of the lands in Scotland; and the interlocutor of the Lord Ordinary, of the 21st of May 1796, in so far as it finds, that in respect it is not alleged by the defender, that any other person is in possession of that estate, or competing with her for it, or that she herself is not in possession of it, in terms of her husband's settlement; and in respect that she does not offer to convey her right to that estate in favour of the pursuers, or even to repudiate her husband's settlement thereof, therefore that she is not entitled to claim a terce out of the lands in Scotland; and the interlocutor of the Lords of Session of the 20th of January and 9th of February 1797, in so far as they adhere to the parts of Lord Ordinary's interlocutor above mentioned, be Reversed: And it is hereby declared, that the appellant Mrs. Lowthian is not bound to give up the benefit of the devise to her by the will of the 12th of October 1782, and codicil thereof, of her husband, before she can be admitted to the possession of her terce out of the lands in Scotland: And it is further ordered and adjudged, that the rest of the said several interlocutors complained of in the said appeal be affirmed.