Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Helen Huggane
v.
Walter Scot of Briershaws

Date: 16 January 1664

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Mr. Hew Elphinston in Galasheills, by his latter will and testament, nominates Walter Scot of Briershaws, his sole executor and universal legatar. Mr. Thomas Lowes, minister at Galasheills, is notary thereto. This testament Briershaws confirms. Whereafter Helen Huggane, daughter lawful to Andrew Huggane in Hadhope, procreated by him on Janet Elphinston, sister to the said Mr. Hew, as nearest of kin to the said Mr. Hew, and so founding right to his executry, thereon intents a summons of reduction of the said testament and confirmation; summoning Briershaws to compear; as also the commissary, and commissary clerks of Peebles for their interests in confirming the same, to hear and see the same declared null; on this reason, because the said nomination or testament was subscribed by the said minister without a warrant from the defunct, Mr. Hew; at least after Mr. Hew's decease, which in law he could not do; which they offered them to prove by the oaths of the witnesses inserted; and, therefore, the same must be reduced. At the calling of the cause there is produced for the pursuer an extract of the said testament craved to be reduced: then both parties, of consent, hold the production satisfied; and to the reason of reduction, its replied for the defenders that the same is noways relevant, in respect the pursuer has produced nothing to instruct her nearest of kin, which is her active title, and so ought to be verified in ingressu litis. 2do, She can never quarrel the said testament, because she has ratified the same in so far as, the defunct having left her a legacy, what the said Scot of Briershaws, his executor, should think fit to give her, she, since the defunct's decease, has demanded the same, and accordingly received both clothes and money for this defender; and so has homologated and acknowledged the validity of the said testament, by taking benefit thereby. 3tio, Nullo modo relevat, to say that this testament is null in the law, and so reducible because subscribed by the said Mr. Thomas Lowes, minister, after the defunct's decease. In law its not respected at what time the notary subscribes the writ, but at what time the command was given; for a notary may perform a deed of notary, as in taking a seasine, and yet for some days thereafter may delay the subscribing or extending thereof, because the notarie's words are, hæc fieri vidi scivi audivi et in notam cæpi; so that the minister being here in place of a notary, there was no necessity of a present subscribing. But 4to, To take away all controversy, offers to prove by the oath of the minister and witnesses inserted, that the same was subscribed before the defunct's decease. To which it was duplied for the pursuer, 1mo, That she shall prove that she is nearest of kin, which is her active title, cumprocessu. To the second its not relevant, 1mo, Because no mention of the pursuer's name in the testament produced. 2do, What goods she received from the defender were not in relation to that clause in the testament, leaving her something; but she being nearest of kin, poor and illiterate; and he being a stranger, (though nominated executor to her uncle,) and knowing of no such nomination, accepted some things of him, which can never infer a homologation of the said testament. To the last, non relevat; neither is the simile taken from a notary to a seasine good; for a testament is not legal except it be drawn up in the defunct's name, in prima persona, and not by way of instrument, where a notary speaks in tertia persona; so then a testament being a direct deed of the defunct himself, he speaking therein and not the minister or notary, if the said testament, ex ejus mandato, be not subscribed in his lifetime, but after his decease, the same is noways legal, but is null, seeing mortuo mandatore expirat mandatum. Item, The pursuer being in libello, and offering to prove her reason of reduction by the oath of the minister and witnesses inserted; item, This pursuit being in favours of the nearest of kin contra a stranger; the pursuer ought to have the preference of probation, she being more pregnant, and offering to prove positivè that the said testament was subscribed after the defunct's decease.

All which the Lords having considered, they noways found the said testament homologated. Found that part or member of the defender's reply relevant, whereby he offered him to prove that the said testament was subscribed before the defunct's decease; to which effect the minister and witnesses therein inserted are summoned to give their oaths; which they having done, the Lords found their depositions proved the said member referred thereto sufficiently. Whereupon the Lords assoilyied the defender foresaid from the summons of reduction intended against him, and declared him free therefrom in all time coming.

Act. Mr. Geo. Norvell. Alt. Sir George Lockhart, Mr. Alexander Spottiswood. Signet MS. No. 84, folio 32.