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Scottish Court of Session Decisions >>
Melvil v Drummond, [1634] Mor 4483 (3 July 1634)
URL: http://www.bailii.org/scot/cases/ScotCS/1634/Mor1104483-040.html Cite as:
[1634] Mor 4483
Effects locally situated in Scotland must be under the direction of the Scots law; and conveyances of such effects must be in the Scots form.
Subject_3 SECT. I.
Heritable Subjects bequeathed by Testament.
Melvil v. Drummond,
Date: 3 July 1634 Case No. No 40.
An heritable bond due in Scotland was found not legally conveyed by a testament according to the English form, tho' the testator resided in England, animo remanendi.
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Esther Tailor and George Melvil her second spouse, pursue Archibald Drummond, executor to umquhile——Drummond her first husband, for payment to her of a sum of money, left in legacy to her by her husband, wherein the Lords found, that albeit by the law of England, where the infeftment was made, which bore that legacy, the testator might leave legacies of heritable sums, and that the heir could not quarrel the same, but that such legacies are effectual; and albeit the heir was born in England, and so was alleged behoved to be subject to the English laws, yet seeing the money left, was addebted in Scotland, and was a sum which could not be disponed upon by way of testament, and so came not under legacy, according to the Scottish laws, therefore that the relict had no action to pursue for the same, by the practique and laws of this realm; for bona tam mobilia quam immobilia regulantur juxta leges regni & loci in quo bona ea jacent, & sita sunt; for this legacy was in corpore individuo, of another nature than what was testable in Scotland, being of a particular heritable bond.
Act. Stuart et Gray.Alt. Nicolson et Gilmour.Clerk, Gibson.
Fol. Dic. v. 1. p. 320. Durie, p. 723.
