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Scottish Court of Session Decisions >>
Jack v Gourlaw. [1605] Mor 15923 (21 June 1605)
URL: http://www.bailii.org/scot/cases/ScotCS/1605/Mor3615923-001.html Cite as:
[1605] Mor 15923
A bond by a husband, engaging to purchase land, and infeft his wife in liferent, found null, because included in his testament.
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Jack and his wife pursued one Gourlaw, heir to umquhile Gourlaw, for his bond to ware 2000 merks upon land, to the effect that she might be infeft in liferent therein, according to her umquhile husband's obligation made to her, in the month of November, 1601. It was excepted, That the obligation was null, because it was made in the defunct's testament, and consequently could not bind the heir, but was null in law. It was answered, That albeit the obligation was in the testament, yet it was not made upon the defunct's death-bed, it being true, that he being a mariner, he made thereafter many voyages forth of the country, and died upon the coast of Spain, in December, 1602, and so the bond contained all the tenor of a lawful bond for giving infeftment, and lawfully subscribed between notaries, before sufficient witnesses, the adhibiting of a nomination of an executor to the same could not prejudge the effect of the bond. Notwithstanding whereof, the Lords found, That the obligation could not give action, because it was contained in the testament.
