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Gray v Craig. [1609] Mor 3562 (14 December 1609)
URL: http://www.bailii.org/scot/cases/ScotCS/1609/Mor0903562-008.html Cite as:
[1609] Mor 3562
No Benefit of Discussion betwixt Heir and Executor.
Gray v. Craig
Date: 14 December 1609 Case No. No 8.
A man being bound to infeft his wife in an annualrent, and at his decease, not being of that estate that he can have an heir, the party was found to have action against his executors, although the bond was heritable, and only proper against an heir, if any there were.
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Gray, the relict of Craig, pursued Craig, her own son, as executor and universal intromitter with the goods of her umquhile husband, to fulfil to her her contract of marriage; and, to that effect, to bestow 1000 merks upon land or annualrent to her in liferent. It was excepted, That no process could be granted against this defender, as executor or intromitter, &c. because this part of the contract of marriage was heritable proporting infeftment, and the executors could not be pursued to that effect, but only the defunct's heir.—It was answered, That the defunct could not have any heir, neither being prelate, baron, nor burgess, and so he not having an heir, this pursuer had good interest to pursue the intromitters with his gear, to fulfil the contract tocher. In respect whereof, the Lords repelled the exception.
Fol. Dic. v. 1. p. 246. Haddington, MS. No 1690.
*** The like was decided, 16th January 1610, Spence against Reid, voce Consuetude, No 3. p. 3092.
