Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mary Middleton, Ley her Husband, and Ross of Tullysnaught, v. William Turner
Date: 12 December 1693
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In the case of Mary Middleton, and Ley her husband, and Ross of Tullysnaught, their assignee, against William Turner, notary, about the reducing of a testament, and what witnesses should be now allowed to be examined; the Lords found, no witnesses ought to be received in such a case, but those who were present at the time of the defunct testator's subscribing; and that the legators in the testament, and debtors of the defunct, could not be received as habile to depone anent the capacity and condition the defunct was in at the time of his signing, if he was in extremis, and whether it was all read or not; but only to be interrogated if there was a blank in the testament at the time it was subscribed, and if, in it, there was afterwards filled up, the universal legacy to the wife. By the Roman law, legatorii et fidei commissarii particulares might be instrumentary witnesses in a testament,— 11. Instit. de Testameniis Ordinandis; and it is hard to take away a testament by extraneous witnesses, not adhibited by the defunct himself.
