Scottish Court of Session Decisions

Subject_1 TESTAMENT.

Crichton, Petitioner

Date: 12 January 1802
Case No. No. 31.

A testamentary deed being improbative, not sustained as a conveyance of moveables.

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Walter Macturk bequeathed to his niece, Mary Crichton, the contents of a bill of exchange, and some other articles, in a testamentary deed, subscribed by him in presence of two witnesses, whose subscriptions are adhibited to the deed, which, however, is not holograph, and which contains neither the name of the writer nor the designation of the witnesses. His brother Robert was decerned executor, and took possession of his whole effects.

Against him the legatee brought an action, claiming the articles bequeathed to her,

Pleading: That both in the acts 1593, C. 175, and 1681, C. 5. on which the defence of the improbative nature of the writing rests, the writings specially mentioned are deeds inter vivos, and deeds conveying heritable property. Testamentary conveyances can be affected only by the general, words, “other writs,” following the special enumeration; but, in all such cases, the general words never comprehend things totally different, but those only of the same class and description. Testamentary deeds, destitute of the solemnities requisite to the authenticity of contracts and obligations, are sustained by the English law, if there exist sufficient proof of intention; Bacon Abridg. by Gwillim, vol. 7. p. 328.; and by the. civil law, Lex 4. Cod. Lib.4. Tit. 13. In contracts, the want of the statutory solemnities cannot be supplied by the granter’s acknowledgment; Crichton against Syme, 21st July, 1772, voce Writ; Macfarlane against Grieve, 22d May, 1790, No. 51. p. 8459.; as it is in this last case expressed, “that these are required to afford time for due reflection and deliberation.” Now, testaments are the effects of mature and deliberate consideration; and our law agrees with the law of other countries in giving an indulgence to such witings in the omission of the statutory solemnities; Ersk. B. 3. Tit. 2. § 23.; Norval contra Ramsay, No. 46. p. 12290.; Drummond contra Brown, 1798, (Not reported; see Appendix.) See Writ, (privileged.)

Observed on the Bench: An improbative writing has never been sustained as a conveyance of moveable succession, unless where there has been a penuria peritorum, as in the case of military testaments made abroad.

The Lord Ordinary (19th November, 1801,) assoilzied the defender; and the Court “adhered,” by refusing a petition, without answers.”

Lord Ordinary, Methven. For the Petitioner, Corbet. Agent, A. Douglas. Clerk, Pringle. Fac. Coll. No. 14. p. 29.