Scottish Court of Session Decisions

Subject_1 COURTESY.

M'Aulay
v.
Watson

Date: 19 January 1636
Case No. No 4.

A husband having claimed his right of courtesy during his life, his executors could not claim it in prejudice of a singular successor from the heir of the heiress. See No 20. p. 1740.

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Agnes Watson executrix confirmed executrix to Robert Watson her brother, obtained a decreet before the commissaries of Edinburgh, against James M'Aulay heritor of certain lands within Edinburgh, for payment to her of the mails of the saids lands from the 1604 to 1628; which mails as she alleged, did of right belong to the said Robert all these years, by reason of the courtesy of Scotland, in regard he had married the heritrix of the said lands, and consequently did now appertain to her as executrix to her brother. The said James M'Aulay intented a reduction of this decreet upon this reason, that this courtesy is only personal, and died with the person of the said relict, who having neglected it all his lifetime, his executors can claim no right thereunto after his decease; even as in a Lady tercer, who albeit she had never so good right to a terce, yet if she be not kenn'd to it in her own time, in vain should her executors sue for it. And this pursuer being infeft in the saids tenements by disposition from the heritor thereof, and having brooked them bona fide all the years libelled unquarrelled, cannot now be drawn in question post tanti temporis intervallum et post fructus bona fide perceptos; no more than if the said Robert were yet alive himself, who would not be heard to seek the bygones of so many years, which the heritor had intromitted with bona fide. Alleged, The reason was no ways relevant, for the mails being due to the defunct, his executors had good right to seek them, neither was the simile of lady tercer to the purpose, because by the ordinary practice, before a woman can have right to a terce, she must be first served by a brieve, and after that kenn'd to it by the Sheriff's precept; before which be done, if she happen to decease, it is true that her executors have no place to call for the profits of the said terce; but it is otherwise in a curiality, whereunto he that has right needeth no previous declarator of the same, but may summarily, by virtue of his right, enter to the possession of the lands, whereunto he hath right during the courtesy: And the pursuer's possession cannot maintain him against the defender's uncontrollable right, nor can he be thought to have possessed bona fide where another had a good right standing. The Lords found the reason of reduction relevant.

Spottiswood, (Curialitas.) p. 78.