A defunct in his testament ordained his relict to bruik all, only giving her son a plenished room. Found, that homologation of the testament, by receiving the furniture, ought to be proved by writ or oath, not by witnesses.
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The son pursuing the mother to remove from lands, and she excepting, That her husband by his testament had ordained her to bruik all his lands, and to give to the pursuer their son a room plenished sufficiently; which testament the pursuer has homologated, by receiving from the defender, by virtue and conform to the said testament, the said room well plenished by the defender; and so the testament being thus approved by the pursuer, he cannot come against the same, nor seek the defender to be removed from the lands libelled, which the defunct has willed her to bruik during her lifetime, and which the pursuer has ratified by acceptation of the condition thereof, as said is;—this exception being found relevant by consent of the party pursuer, the Lords found the homologation of the testament so qualified, as the exception bears, viz. the receiving of the room plenished, for implement of the testament, and by virtue thereof, ought to be proved by writ only or oath of party; and found it not to be admissible to be proved by witnesses, as the defender alleged it ought and might be proved, consisting in facto, viz. in delivering of a room with the plenishing thereof, which was laboured, received, and kept by the pursuer; seeing the Lords found it should be proved by writ or oath of party, that it was received by the pursuer for implement, and by virtue of this testament, which in that part was not probable by witnesses.
Act. Gibson.Alt. ——.Clerk, Scot.
Fol. Dic. v. 2. p. 216. Durie, p. 638.*** Auchinleck reports this case:
Arthur Straton pursues his monther Roberston, for removing from the lands of Kirkside. It is excepted, By his father's testament it was appointed, that his mother should bruik the whole heritage during her lifetime, and that if they could not agree in household, that she plenish a little room called Scotston, and he should give to his sister the half of the tocher, and to dispone to them the heritable title of a tenement in Montrose; conform to which the defender had plenished and delivered to her the said room, wherby he had fulfilled the said testament. To which it was answered, That his father could not make any such reversion by way of testament; and as to the fulfilling, it could not he proved by the alleged accepting of the plenished room, but must be proved scripto vel juramento partis; which the Lords sustained.
