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Scottish Court of Session Decisions >>
The DAUGHTERS of SOUTRAY v The ELDEST DAUGHTER. [1670] Mor 15927 (13 July 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Mor3615927-007.html Cite as:
[1670] Mor 15927
Testament may subsist without nomination of an executor.
Null, if the executor's name was filled up after the testator's death.
A disposition of land in a testament is ineffectual.
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The Laird of Soutray having granted a writ in favours of his eldest daughter, beginning in the stile of a testament, and, after a blank, disponing his lands of Soutray, and his whole moveables, to the said eldest daughter, with the burden of 10,000 merks to be paid to the remanent daughters; the said remanent daughters pursue a declarator of the nullity of the writ; first, In so far as being a testament, it contains a disposition of the lands; 2dly, In so far as the eldest daughter is nominated executrix and universal legatrix, because, by ocular inspection, that part of the writ was blank, and is filled up with another hand, which is offered to be proved to have been done since the defunct’s death, so that the executor and legatar not being filled up by the defunct in his own time, and these being the essentials of the testament wanting, the whole falls, even as to the disposition of the moveables. The defender answered, That the testament was valid, albeit the name of the legatar and universal executor were filled up after the defunct’s death; yet it is offered to be proved, that the defunct, when he subscribed the testament, did nominate his eldest daughter as executrix and legatrix, and gave warrant to the notary to fill up the name, which though he neglected then, and has done it since, it ought not to prejudge her. It was answered, That our law allows of no nuncupative testaments, or nominations of executors or legatars, unless the testament be perfected in writ; and therefore, if the executor or legatar be not filled up by the defunct, the testament is not perfected in writ, albeit the defunct has subscribed the same, as he might have done in a blank paper, and given warrant to the notary to fill up his testament upon such terms as could not subsist, though the notary and witnesses should astruct the same, as not being done, habili modo.
The Lords found the testament null as to the nomination of the executor and legatar, and also as to the lands; but they found it valid as to the disposition of the moveables, with the burden of the 10,000 merks; and found, that the want of the nomination of the executor or universal legatar did not hinder but that the defunct might in any way dispone his moveables, in testament, or on death-bed, which would stand valid as a legacy, which, by our law, might consist without nomination of executors, but would extend to that part of the moveables only the defunct might legate.
Stair, v. 1. p. 693.
*** Gosford’s report of this case is No. 38. p. 6375. voce Implied Condition.
