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Scottish Court of Session Decisions >>
Anna Wardlaw v Frazer of Kilmundie. [1663] Mor 5703 (21 February 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor1405703-086.html Cite as:
[1663] Mor 5703
Homologation of part, whether Homologation of the whole.
Anna Wardlaw v. Frazer of Kilmundie
Date: 21 February 1663 Case No. No 86.
An heir having paid pait of a legacy of an heritable bond, the whole legacy was sustained, though otherwise null.
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Andrew Wardlaw having a wadset upon some lands of the Lord Frazer, the debtor raises suspension of multiplepoinding against Anna, sister and heir to the said Andrew Wardlaw, and Frazer of Kilmundie, pretending right by a legacy from the defunct to the said sum.—The heir alleged, That it could be liable to no legacy, being heritable.—The defender answered, 1mo, The legacy was made in procinctu belli, where there was no occasion to get advice of the formal and secure way of disposing of the wadset, but the will of the defunct appearing in eo casu, it must be held as effectual as testamentum militare in procinctu, which needs no solemnities, 2dly, The heir's husband hath homologated the legacy, by discounting a part thereof.—It was answered, That no testament whatever can reach heritable rights with us. 3dly, That the homologation of the husband cannot prejudge his wife nor himself, quoad reliquum not discounted.
The Lords found the heirs had only right, except in so far as the husband had homologated the legacy, which they found to prefer the legatar to the whole benefit the husband could have thereby jure mariti, but not to prejudice the wife thereafter. See Testament.
