Scottish Court of Session Decisions

Subject_1 LEGITIM.

Agnew of Sheuehan
v.
Agnew

1749, Jan. 18, Feb, 22.
Case No. No. 7.

Click here to view a pdf copy of this documet : PDF Copy

A younger son having accepted a provision in satisfaction of legitim and bairns part of gear but not of executry, the father died intestate, and the younger brother sued the eldest son and heir for the whole executry, who founded on die renunciation and claimed the legitim. Answered, there is no legitim due to the heir, but the whole executry falls to the pursuer notwithstanding the renunciation, and Dun found so; and upon a reclaiming bill we adhered, me renitetde, because we had often found in 1622, 1681, and 1737, that when there is an only son though he be also heir, he is entided to a legitim. And Lord Stair says, that if only one child, the heir unforisfamiliate, he is entitled to a legitim, and if there had been a relict she would have had only a third, and the heir must have had the other third as legitim, because the pursuer could not take a legitim, and the pursuer would take the dead's part only. The President thought the heir might diminish the reliefs part, but could take nothing in competition with the younger children though they have renounced, and even thought that though the younger children renounce both legitim and executry, that it would not go to the heir; and 22d February adhered, renit Milton, Minto, Kilkerran, et me.