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Scottish Court of Session Decisions >>
Colonel James Montgomery v Stuart. [1666] Mor 5396 (27 January 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor1305396-019.html Cite as:
[1666] Mor 5396
Heirship moveables cannot be, where the defunct had only a disposition without infeftment.
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In the declarator betwixt these parties, mentioned the 24th instant, voce Heritable and Moveable, it was alleged, That the plenishing and moveables could not be declared to belong to the pursuer, by virtue of Dame Elizabeth Hamilton's disposition, in so far as concerns the moveable heirship, in respect it was done on death-bed, and could not prejudge the defender, who is heir, even as to the heirship moveables.—It was answered, That the said Dame Elizabeth being infeft neither in land nor annualrent in fee, could have no heirship.—It was answered, That her husband and she were infeft in certain lands by Home of Foord, which were disponed to her husband and her in conjunct-fee, and to the heirs of the marriage; which failing, to whatsoever person the said Sir William should assign, or design; and true it is, he had assigned that sum to his Lady, whereby she had right of the fee, and so might have heirship.
The Lords found, That this designation made the Lady but heir apparent or of tailzie, whereupon she was never infeft; and by the conjunct-fee, she was only liferenter; and that the assignation to the sums and right, gave not her heirs any heirship moveable.
