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Scottish Court of Session Decisions >>
Ker v Hay. [1708] Mor 16972 (1 January 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor3816968-220.html Cite as:
[1708] Mor 16972
Testamentary deeds are privileged, and sustained although much deficicient in formalities.
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Patrick Hay, brother to Gourdy, having £100 Sterling due to him in the African Company, and going a Captain to the Scotch colony at Darien, and sickening there, he makes a testament in March 1699, at New Edinburgh, in New Caledonia, whereby he leaves the said £100 Sterling to Francis Hay, taylor in the Canongate, his brother, and Sarah Hay, spouse to the said Francis Ker, his sister, equally be tween them; and having died there, his brother Francis confirms himself executor dative as nearest of kin, and upon this title uplifts the money from the commissaries of the equivalent. Francis Ker having an assignation to all sums, from Sarah Hay, his wife, he pursues her brother for the half of the said money, and founds on the testament. Alleged, It is a null deed; for 1mo, It does not design the granter, but only I undersubscribing; 2do, It wants an executor which is caput et fundamentum testamenti; 3tio, It does not bear who was the writer. Answered, Ought to be repelled, 1mo, Because his naming Francis and Sarah Hays, as his brother and sister, does sufficiently design and circumstantiate him; 2do, There needed no nomination of an executor, for he made an universal legacy of his whole means to his brother and sister. To the third it bears, “witness my hand,” which presumes it to be holograph, unless they offer to improve it; and besides, it has two witnesses inserted and subscribing. The Lords considered it was done among soldiers, and in place where there was not copia peritorum, and therefore repelled the objections, and sustained the testament as a probative writ.
