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Scottish Court of Session Decisions >>
Falconer v Arbuthnot and Others. [1751] Mor 16817 (9 Jan 1751)
URL: http://www.bailii.org/scot/cases/ScotCS/1751/Mor3816817-024.html Cite as:
[1751] Mor 16817
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Several bonds granted by the Lady Phesdo to Arbuthnot of Fordoun and others her grandchildren, having her subscription adhibited to them, after she was so blind with age that she could not see to subscribe, and where it was proved that Fordoun led her hand when she adhibited her subscription, were upon that ground reduced; notwithstanding the deeds appeared rational, and that some evidence was brought of her previous intention to give some donations to her grandchildren.
At pronouncing this interlocutor, the Lords were nowise moved by the arguments brought by the pursuer to prove an imposition, but they thought there was the utmost danger in sustaining deeds in those circumstances. They also thought that L. 8. C. Qui test. facere possunt, was founded on solid principles; that there fore a person blind, or so blind as the Lady was, could not legally sign but by notaries, and that a publication of her will coram tabellione et testibus was necessary, for the reason given in fine, D. I. 8. That whatever reasons there might be to think there was no imposition in this case, yet the law suspected and even presumed it. That farther, one's subscribing, by having his hand led, is illegal, dangerous to sustain in any case, especially so in this.
