Scottish Court of Session Decisions

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

Shaws
v.
Mr Shaw's Executrix.

Date: 22 February 1665

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Mr. Shaw, a Scotsman, upon death-bed, being intimate with one Mrs. Lewis, at London, where he died; and she being a chastie young woman, takes advantage of his condition, and asked him if he would leave her executrix; and he, being in that estate that he would have answered affirmativè to any thing she had propounded to him, said he was content; and this being spoken before witnesses, she proves the same before the prerogative court of Canterburie, which has the force of a testament by the English law, being that the civil law calls a nuncupative testament. She claiming right to his moveables in Scotland, by virtue of this testament, the nearest of kin, they compear and take a dative; and then debating anent the preference, the Lords found that her nuncupative testament was not a valid title in Scotland to claim his moveables here, as the executor dative could not prejudge her with the nuncupative testament as to the moveables in England; and so preferred the nearest of kin to the Scots estate, he being a Scotsman, and Mrs. Lewis to the English moveables.

Act. Mackeinzie. Alt. Cunyghame. In P. D. Advocates' MS. folio 54.