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Scottish Court of Session Decisions


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URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor3615941-017.html

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[1735] Mor 15941      

Subject_1 TESTAMENT.

Brand
v.
Brand

Date: 4 December 1735
Case No. No. 17.

Click here to view a pdf copy of this documet : PDF Copy

A testament being executed in liege poustie, with the common preamble usual in such deeds, nomination of an executor, burden of debts, &c. the following clause is adjected: “Which several debts and expenses of my funerals, I hereby appoint the said Sarah Brand to pay out of the first end of her intromissions as executrix; and for the better enabling her so to do, I hereby make, constitute, and ordain her, her heirs and donatars, my cessioners and assignees in and to the principal sum of £.500 Sterling, heritably secured upon the estate of Bransfield.” In a reduction of this testament by the heir, in so far as concerned the heritable subject, the defence was, That nothing hindered a testament and assignation inter vivos to be upon the same paper. Answered, Where the deed is principally intended to be a disposition or conveyance inter vivos, it will be effectual, though a nomination of executors or other testamentary clause be adjected. But where the deed appears to be a formal testament, there a conveyance of heritage is inept, if fixed law and practice is to be the rule. And one reason is, That a testament, at whatever time executed, has no effect but as being the last will of the defunct; it is therefore construed in law to be the deed of the latest minute, equally as if it bore that date; and so testaments, from the nature of the thing, must be ever subject to the law of death-bed. It is otherwise in deeds inter vivos, which, though not delivered, are understood to be valid of their date, subject indeed to revocation or alteration; and if valid of their date, they must be safe from the challenge of death-bed, where executed in liege poustie. The Lords sustained the reason of reduction.—See Appendix.

Fol. Dic. v. 2. p. 459.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor3615941-017.html