Anne Grahame v. Marquis of Montrose and James Fenton
1685.
March. Case No. No. 115.
The objection to a testament, that one of the witnesses was a legatee, was repelled.
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A person having named a stranger his executor and universal legatar, with the burden of some particular legacies, his sister raised reduction of the testament as nearest of kin, upon this ground, that it wanted habile witnesses, in so far as one of the witnesses was a considerable legatar, and so could not be testis in causa sua.
Alleged for the defender: That the reason is not relevant; because, 1mo, The witnesses were in effect instrumentary witnesses, who cannot be rejected; 2do, By the civil law legatarii et fide commissarii were habile witnesses in testamento scripto, though not in nuncupativo; 3tio, Whatever might be pretended against a testamentary witness pursuing for a special legacy, the witness there quarrelled may prove the verity of the testator's subscription, in favours of the universal legatar, to exclude the pursuer's interest of nearest of kin.
Answered for the pursuer: Though, where writs are granted and accepted by parties, as in the case of bonds, contracts, &c. the creditor receiving the security consents to the hability of the witnesses therein, that cannot be drawn as a rule to a testament in prejudice of the nearest of kin, who did not consent to or subscribe it; 2do, It was upon special considerations that legatars are allowed to witness by the common law, in respect here, principale negotium agebatur inter testatorem et hæredem, and seven witnesses were required; and the heir who had the heritage by the testament, had no reason to quarrel it; but these specialties take no place with us where moveables only are testable, and testaments need but two witnesses. Again, more faith was given to witnesses by the civil than by our law, ne defunctus intestatus decederet.
The Lords repelled the reason of reduction, and sustained the testament as a complete probative writ.
