Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Joseph Douglas and - Pringle, his Spouse, v. the Eldest Daughter of Pringle of Soutray
Date: 15 July 1670
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This is a reduction and improbation of a testament made by the deceased Pringle of Soutray, wherein he nominates his eldest daughter his executrix and universal legatrix, and so leaves her his whole moveables, to the clear prejudice of his other daughters, of which the pursuer's wife is one. The reason is, that though this testament was subscribed indeed by the defunct, yet it is offered to be proven that the nomination of the defender, as executrix and universal legatrix, &c. was filled up after his decease: and so the testament is altogether null; the nomination of an executor being caput et fundamentum testamenti, and so essential a part thereof, that eo omisso totum testamentum corruit.
Answered, 1mo, That the reason ought to be repelled, because, though the nomination was filled up after the defunct's decease, yet it was so done by special order from the testator, and so must be sustained as done by him before his decease. 2do, Though it was not filled up till after his decease, yet by his own hand, in his testament, he had done the equivalent; in so far as he had nominated this defender his heir to his whole goods and geir, as well moveable as unmoveable, as well real as personal; which, though it would never reach his real estate, yet certainly will import the same as if he had nominated her his executrix and universal legatrix.
Replied,—To the first, that that order was only nuncupative, and so makes the testament nuncupative, which is null and ineffectual by the law of Scotland. To the 2d, the testament wanting a formal nomination of an executor, (which is the essence and being of it,) it can never subsist, but is null and altogether unvalid.
Duplied,—To the first, that that testament is only nuncupative whereof no part is redacted in writ, but the same was wholly delivered before witnesses; so then this testament quarrelled can never be reputed a nuncupative testament. To the second, a testament by our law is good and valid, if a man leave a legacy, one or more nominated tutors to his children, though he makes no nomination of an executor in the same. Yet jure civili, testamentum in quo non erat institutio heredis erat nullum.
