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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Davidson v. Clark and Others [1867] ScotLR 5_119 (13 December 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0119.html
Cite as: [1867] SLR 5_119, [1867] ScotLR 5_119
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SCOTTISH_SLR_Court_of_Session
Page: 119↓
Court of Session Inner House Second Division.
v.
Facts:
Next of kin charged under the Act 1695, cap. 41, having neither renounced nor confirmed, and being sued as vitious intromitters, renounced the succession when the case was in the Inner-House upon a reclaiming note; the Court found them liable in expenses of process, under deduction of the expense of the minute of renunciation.
This was an action brought against the next of kin of the deceased Mary Clark, at the instance of a person who had alimented her illegitimate child, for the amount of aliment expended and to be expended upon it. Before bringing the action, the pursuer charged the defenders under the Act 1695, cap. 41, to obtain themselves confirmed executors qua next of kin of the deceased Mary Clark within twenty days, “with certification to them if they fail either to get themselves confirmed as executors foresaid, or to renounce their right in the moveable effects of the said Mary Clark, they shall be liable to the complainer (pursuer) as vitious intromitters with the said Mary Clark's moveable effects.”
The defenders did not confirm, and the present action was brought against them as vitious intromitters under the Act, and concluded that they should be decerned against, conjunctly and severally, in the premises. The defenders denied that they had had any intromission with Mary Clark's estate, which, they alleged, consisted entirely of a claim under a settlement of her father, which was not presently exigible. They did not renounce the succession, but were willing that the pursuer should have decree against Mary Clark's estate, provided she did not ask expenses against them, contending that she was bound to constitute her claim against them at her own expense, just as if they had been confirmed executors. The pursuer refused to agree to this, and defences were lodged upon the matter of expenses. The pursuer contended that the defenders were bound either to confirm or to renounce the succession; that, as they had done neither, they were vitious intromitters under the Act, and could not plead the privileges of duly confirmed executors, nor require a constitution of the pursuer's claim at her own expense.
The Lord Ordinary ( Kinloch) decerned against the defenders, with the declaration that the decree should only be enforceable to the extent of the succession of Mary Clark devolving on them, and found the defenders entitled to the expenses of process.
The pursuer reclaimed.
Maclean (with him Gifford) for her, and Thomson, for the defenders, were heard.
In the course of the hearing, the defenders offered to renounce the succession, and were allowed to give in a minute to that effect, the pursuer not opposing.
Upon this being done, the Court, in respect of the minute, assoilzied them from the passive titles libelled, but decerned against them cognitionis causa tantum, to the effect that the pursuer might attach the moveable estate of the deceased Mary Clark, and found the pursuer entitled to expenses, under deduction of the sum of £2, 2s., as the expenses of the minute of renunciation put in by the defenders.
Solicitors: Agent for the Pursuer— W. Miller, S.S.C.
Agent for the Defenders— A. Morrison, S.S.C.