Scottish Court of Session Decisions

Subject_1 LEGITIM.

Mr James Justice
v.
Murray, &c

1737, Nov. 10.
Case No. No. 2.

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This question was, Whether one only child who was both heir and nearest of kin is entitled to a legitim of which his father could not prejudge him by any deed of a teata mentary nature. The President, Dun, Arniston, Murkle, and Haining thought that an heir could not claim a legitim, (except in the case of more children that the heir may collate) and that though where there is one only child who is heir and a relict, the relict has but a third, as was found in the case Trotter, 12th January 1681, (Dict. p. 2375) yet the defunct may dispose of the other two-thirds as dead's part, and there there was no deed by the defunct disposing of it, and therefore the only child had the whole two-thirds; but where there is no relict the dead's part is the whole, notwithstanding there be one only child an heir. Others of us thought the heir's legal right to the legitim was a necessary consequence of the right of collation with other children, and of that judgment in 1681, and of the instructions to the Commissaries in 1666, and agreeably to the analogy of law, and consequently if he has a legitim the defunct cannot prejudge it; and upon the question all except those above found that the pursuer had right to his legitim.—N. B. The Justice-Clerk did not vote because he was a creditor of Mr Justice, and said he believed that was the best fund of his payment.