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Carmichael v Carmichael. [1745] Mor 14417 (23 January 1745)
URL: http://www.bailii.org/scot/cases/ScotCS/1745/Mor3314417-053.html
Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. VIII.
Confirmation necessary to establish a right to the Dead's Part in the nearest of Kin. - A Bond of Corroboration obtained by the nearest of Kin supersedes Confirmation. - Heir of a Marriage may without Service challenge Deeds contrary to the Contract of Marriage.
Carmichael v. Carmichael
Date: 23 January 1745 Case No. No. 53.
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The brother of a defunct having taken out an edict, in order to a confirmation, as executor qua nearest of kin died after obtaining a decree-dative, but before the confirmation was expede. A question arose between his children and the other nephews and nieces of the first defunct; the former alleging, that though the office had never been vested in their father, yet that the decree-dative fully established the dead's part in him so as to transmit to his children, who therefore were entitled to the office of executors to the first defunct; and the other nearest in kin contending, that since there had been no confirmation, the decree-dative was of no effect; the Lords remitted to the commissary to confirm the nearest in kin, without regard to the decree-dative.
Fol. Dic. v. 4. p. 270. Rem. Dec. D. Falconer. Kilkerran.
*** This case is No. 12. p. 9267. voce Nearest of Kin.
