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Scottish Court of Session Decisions >>
STUART v SMITH. [1680] Mor 15928 (20 November 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor3615928-008.html Cite as:
[1680] Mor 15928
A testament subscribed by notaries on blank paper, and filled up after the defunct's death, found null, and the notaries deposed.
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Stuart having a gift of bastardy and ultimus hæres of———Creichton, pursued declarator, libelling, “that the defunct was holden and reputed bastard, which was sustained, without condescending upon the father or mother.” It was further alleged, that the defunct made a testament, and named Wardlaw executor and universal legatar to her, upon his having maintained her many year. It being answered, That the testament being subscribed by two notaries is false, the defunet never having given command to subscribe it, nor heard it read, but that a blank paper was subscribed by the notaries, and was filled up ex post facto, after the defunct’s death; which being found relevant, and the notaries and witnesses being examined, they did depone, that the notaries subscribed a blank paper, and that the defunct was not sensible, nor able to speak, but that her hand was lifted up by another to touch the pen, and that the testament was not filled up till some days after her death.
The Lords found not only the testament null, as being blank, and filled up after her death, but false, and without warrant; and deposed both the notaries, and gave warrant to the Sheriff of the shire to send both their persons to Edinburgh, to be set upon the cock-stool, with a paper upon their brows.
