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Competition Andrew Chalmers with John Blair, &c. [1742] Mor 4852 (17 June 1742)
URL: http://www.bailii.org/scot/cases/ScotCS/1742/Mor1204852-066.html Cite as:
[1742] Mor 4852
Subject_1 FORUM COMPETENS. Subject_2 DIVISION VII.
Testament within what District it must be Confirmed.
Competition Andrew Chalmers with John Blair, &c
Date: 17 June 1742 Case No. No 66.
In a competition between two persons, one of whom had applied to be decerned executor qua creditor by the Comimssaries of Edinburgh, and the other had been decerned executor by the Commissary of St Andrews, the latter was preferred, because the defunct, though a lawyer in Edinburgh, had his principal dwelling house in the commissariot of St Andrew's.
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John Biair having moved an edict before the Commissaries of Edinburgh for decerning him executor qua creditor to the deceased Mr Hugh Murray Kynnynmound, advocate; compearance was made for Mr Chalmers, who had been declared executor qua creditor to Mr Murray before the Commissaries of St Andrews; and it was objected for him, that there could be no confirmation of executors before the Commissaries of Edinburgh, but allenarly at St Andrews, because although the defunct was a lawyer and pleader before the Lords, yet his principal dwelling-house was at Lochgelly in Fife, which is in the commissariot of St Andrew's; and that, for five or six years before his death, he had grass parks and labouring in his own hands, and great works of inclosing his ground going on at Lochgelly, where he had servants constantly residing, and that himself and family resided always there during the six vacation months, when his house in Edinburgh was locked up; therefore, as Lochgelly was his chief domicil, the Commissary of that bounds is he who only can confirm the whole executry.
Answered, for John Blair, That Mr Murray laid his account with residence at Edinburgh during life, where he practised as a lawyer; that in that view, he bought and furnished a dwelling-house in Edinburgh, in which he and his family resided, and where he died. It is true some years before his death he succeeded to the estate of Melgund; and as there happened to be a country-house on part of that estate at Lochgelly, he gave over a country-house he had near Edinburgh, and went there some part of the vacation; and for his diversion he possibly might take some of the parks. However, his first residence in the prosecution of his business was still in his house in Edinburgh, not only during the session, but even during a good part of the vacation, he being one of the town's assessors; so that there is no reason to think that he had any animus or intention to change the locus domicilii which he had once deliberately fixed. If the house of Lochgelly had been the seat of an antient paternal estate, in which Mr Muray and his forefathers had always resided, there might have been some pretence for considering it as his proper domicil, for which, ratione originis, he might have had a particular affection; but that was not the case. In short, Mr Murray's occasional residence at Lochgelly cannot be understood animo remanendi, but only as a sort of recess for amusement and recreation.
The Lords passed Mr Chalmers's bill of advocation, and remitted to the Commissary of St Andrew's to proceed in the edict of confirmation at the instance of the said John Blair.
Fol. Dic. v. 3. p. 241. C. Home, No 194. p. 324.*** Kilkerran reports the same case:
An advocate's domicil found to be at his house upon his estate in the country, where he resided with his family in vacation time, notwithstanding his constant residence at Edinburgh in session time, and even often in vacation time, where his business as town's assessor and practice before the Admiral Court often called him; and that therefore his testament was to be confirmed, not at Edinburgh, but at St Andrew's, within which diocese his said house lay.
The like had been found in the case of a Lord of Session's testament, Creditors of Lord Mersington competing, No 63. p. 4849.; and more lately by interlocutor in the case of the Lord Kimmergham's testament, No 67 infra. It is true, there was no decree in that case, a petition against the interlocutor having been appointed to be seen and answered, which never was advised.
