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Lady Eccles v Mr James Douglas of Earnslaw. [1686] Mor 1767 (00 March 1686)
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[1686] Mor 1767
Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. IX.
With what Modifications Bona Fide Consumption Saves from Repetition.
Lady Eccles v. Mr James Douglas of Earnslaw
1686.
March. Case No. No 48.
A relict's intromission with a defunct's goods, applied before his escheat was gifted, held to be bona fide.
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In a special declarator at a donatar's instance against the rebel's relict, it was alleged for the defender, That she consumed and disposed of some part of the goods acclaimed, for the defunct's funeral expences, her mournings, and the maintenance of the family till a term.
Answered for the pursuer: That the goods of the defunct, who died rebel, fell to the fisk, and could not be liable to any such expence.
Replied: The goods were so employed before the gift of declarator, and the defender was in bona fide to do so, not knowing of the rebellion. 2do, A legal third of her husband's goods belonged to herself.
The Lords sustained the relict's bona fides; but found, That the rebellion excluded legal thirds; and it was not alleged that she had any obligement for her third. See Escheat.
Fol. Dic. v. 1. p. 110. Harcarse, (Escheats.) No 437. p. 117.
