Scottish Court of Session Decisions

Subject_1 NEAREST OF KIN.

Hamilton
v.
Hamilton

1662. December.
Case No. No 3.

Any of the nearest of kin dying before confirmation of the defunct's testament, transmit nothing to their assignees, their own right being established only by confirmation.

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Mr Thomas Hamilton advocate, being executor creditor to umquhile James Hamilton merchant, and having licence, pursues Hugh Hamilton for payment of a great sum of money, alleged due by him to the defunct. It was alleged, 1mo, That by back-bond it was declared, that this sum is not payable, unless Hugh Hamilton should obtain compensation for the like sum owing to him by the Heirs and Executors of umquhile Patrick Wood, and that by virtue of, and upon an assignation to the defender, by the said umquhile James, in and to an equivalent sum owing to him by the said umquhile Patrick, whereunto he did assign the said Hugh; ita est, he has not obtained the said compensation, but the process long ago having been pursued against the said Hugh, it is not as yet put to a close, nor do the executors of Patrick Wood insist, so that Hugh is not in tuto; 2do, Hugh offered to pay what was owing to this pursuer, and for which, he was decerned executor, which he is holden to accept, seeing his interest by payment ceaseth; and that as yet there is no testament confirmed, by which the pursuer may be obliged to do diligence for any inventory, or make the same furthcoming. It was answered to the first, That the executors of Patrick Wood will possibly never insist, nor will Patrick urge them to insist; and the pursuer was content to find caution to refound cum omni causa, if he should not obtain compensation, when he should be pursued. To the second, The pursuer was not obliged to accept of this debt, seeing he was content to confirm before sentence. Likeas, he had a right to the whole moveables of the defunct from ———Hamilton the defunct's sister, and only nearest of kin. It was answered ut supra, and that the sister was dead before confirmation, and consequently the moveables in law belong to the next nearest, and the right made by the sister is void by her death, in regard her own right was never established in her person, nor in the person of any executor, whom she as nearest of kin could pursue. Likeas, Hugh Hamilton was, by this latter will, left universal legatar, which being lost, he has no process for proving the tenor depending.

The Lords found the offer to pay the debt relevant; and that the right from the sister was void and null by her death.

Fol. Dic. v. 2. p. 2. Gilmour, No 55. p. 40.