Scottish Court of Session Decisions

Subject_1 NEAREST OF KIN.

Lady Grange, and her Husband,
v.
Cheisleys, her Sisters

Date: 7 June 1709
Case No. No 6.

The price of some land not having been added to an inventory, through uncertainty whether it ought to have belonged to the heir or execuor; having been afterwards determined to belong to executors, found to have been transmitted to the representatives of one of them deceased, by virtue of the protestation to eik.

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When Major Cheisley of Dairy died, his three brethren and three sisters are confirmed executors to him; but the remnant of the price of the lands of Dalry, sold by the Major to Sir Alexander Baird, not being then clear, whether it was heritable or moveable, it was not confirmed, till the Lords, long after the confirmation, by their interlocutor, found it fell under executry, and then it was eiked to the principal testament by a dative ad omissa; and the heir finding he would have no benefit by the heritage, offered to collate, and so came in for his sixth share of the executry. Robert, one of the executors confirmed, dying abroad, by his testament, legated his part to my Lord Grange's Lady, his sister. And she, by virtue thereof, claiming both her own share due to her jure sanguinis, and her brother's by his legacy, it was contended by the other sisters, that Robert's transmission of his share of the price was a non habente potestatem, no legal right of it being established in his person during his lifetime, seeing it was no part of the inventory of the testament wherein he is confirmed an executor, and never existed during his lifetime, the Lords’ interlocutor finding the price moveable, and the eiking it to the testament, being both posterior to his death, and no more can be said to be confirmed than what was in the inventory; even as in the service of an heir, he has right to no more lands than what are in the brief and claim; so, if one be heir apparent to two baronies, if he only serve to one of them, he can never validly transmit any right, or dispone upon the other; even so here, an executor is hæres in mobilibus, and has no more right than what he gives up in the inventory. It is true, before the 14th act, 1617, the executor nominate intromitted with all, but it was then redressed as an abuse; for an executor is no more than what the common law calls hæres fiduciarius, a feoffee and trustee for the behoof of the creditors, legatars, relict, and nearest of kin, and for which service he got the quarto tribellianica; and we, for his encouragement, give him the third of the dead's part; and if he be denounced to the horn, the whole moveables fall not under his escheat by the rebellion, but only his own share, as was found, 21st December 1671, Gordon, No 86. p. 3894., and can never pretend to more than they confirm; and so the Lords, on, the 17th February 1663, Forsyth contra Paton, No 6. p. 2941., found the father had no claim to his own child's goods, because he had neglected to serve him heir to his mother. Answered, That Robert Cheisley having not only survived the Major, his brother, but likewise being confirmed, he had a clear interest in the whole executry jure sanguinis; and his omitting then to confirm the price, was noways fraudulent, being then sub judice, and undetermined, whether it fell to the executor, or to the heir; and so soon as the Lords found it moveable, it was eiked. And though Robert was then dead, non refert, for his legating is all one, as if he had assigned it by writ inter vivos, in which case it would have carried all. And the paralel case was found, 12th February 1662, Bells contra Wilkie, No 2. p. 9250., where the share of a testament unexecuted was found to transmit, without necessity of a new confirmation ad non executa. See Mackenzie's Observations on the said act 1617; Stair, B. 3. T. 8. § 51., and 28th November 1676, Ker, No 4. p. 9253. And an eik to a testament being but an accessory, it accresces to the principal executor, as every accersorium sequitur suum principale;. so here the price eiked must belong to Robert, and must be transmitted by his legacy to the Lady Grange, his sister. The Lords found, seeing Robert was confirmed one of the executors under protestation to eik, and that it was not then clear, whether the price would fall under the executry or not, but was so determined after his decease; that his transmitting it to his sister by testament, gave her his share of the price, as if it had been actually confirmed in the first inventory, and though he was dead before the same was eiked.

Fol. Dic. v. 2. p. 2. Fountainhall, v. 2. p. 500.