Scottish Court of Session Decisions

Subject_1 INDIVISIBLE.
Subject_2 SECT. III.

Testament, where the Executor is a subscribing witness. - Retour. - Verbal Legacy above L. 100.

The Nearest of Kin of Umquhile Marion Crichton, Lady Inverleith,
v.
Bishop of Glasgow

Date: 1 July 1613
Case No. No 16.

A testament, in which a person nominated executor, was subscribed by him as witness. The Lords reduced it quoad the nomination, but sustained it pro reliqua parte.

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

In an action of reduction pursued by the nearest of kin of umquhile Marion Crichton, Lady Inverleith contra the Bishop of Glasgow, and remanent Executors, for reduction of the Lady's testament, the Lords assoilzied from the first reason, which was founded upon the alleged fraud used by Thomas Young, in making the Lady give command to the notary to subscribe the said testament unread, against her express command given by her to the said Thomas Young, whereby she ordained him to direct the executors to divide her hail goods among her brother's and sister's bairns, which was offered to be proved by the witnesses inserted in the testament.

Item, The Lords assoilzied from the second reason, whereby the testament was quarrelled of nullity, as wanting a sufficient number of witnesses, in respect Thomas Young was witness, and was executor nominated, and so could not be witness, in respect the said Thomas had subscribed witness, and had renounced after the decease of the Lady, and when the party would have quarrelled the renunciation; it was found by the Lords, that the testament was null, in so far as he was nominated the executor; and so he might be witness to the rest, et sic quod testamentum pro una parte et non in toto; and yet the Lords found, that if it might be proved, that Thomas renounced post tractatum et accepta prælia, the testament to be null; which part was referred to the executor's oath.

Fol. Dic. v. 1. p. 464. Kerse, MS. fol. 126.