Scottish Court of Session Decisions

Subject_1 SUCCESSION.
Subject_2 SECT. I.

Succession in Heritage ab intestato.

Mr George Alexander, Advocate, and one Ker,
v.
Alexander Clark

Date: 20 February 1696
Case No. No. 12.

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Mr. George Alexander, and one Ker, raise a reduction of Alexander Clark's service as heir to his grandfather's sister's daughter, (of whose ultimus hæres they had a gift from the Exchequer,) upon this ground, that, by our law, there was no succession by the mother's line, as Craig asserts, Lib. 2. Dieg. 14. De successione fæminea, and Stair, Tit. 26. Of Succession, § 34. shews there is no place for cognates. So also Mackenzie, Institut. p. 294. The other party adduced also pasages seemingly in his favours, from all the three, as Craig, Lib. 2. Dieg. 17. affirming, while there is any alive who can instruct contingency of blood to the defunct, they ought to succed and debar an ultimus hæres.—But that is in the agnatick line; and as to Regiam Majestatem, Lib. 2. Cap. 25. many of our Lawyers disown it from being any part of our law; esto it were, it is now in desuetude. The Lords preferred the donatar to the ultimus hæres. See Stair, Book 4. Tit. 22. that bastards are not secluded from the mother's succession, nor those of her line. This should be amended by an act of Parliament, that there may be no room hereafter for an ultimus hæres in such cases.

Fol. Dic. v. 2. p. 397. Fountainhall, v. 1. p. 713.