Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Alexander Maitland v. The Duchess of Lauderdale
1693 and
1694.
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1693. January 18.—The Lords followed the interlocutor they had given supra in the Lady Boghall's cause against the Duchess; and found the notorial extract of the testament, with the testificate of Lieutenant Eivill at Paris, probative; and found, though this was not legatum speciei, (not being of the jewels themselves, but only out of the price of the jewels when sold,) yet it was onus reale, and a hypothec on the jewels, they being disponed by the Duke to the present Duchess, he having no right to them; because, being paraphernalia el mundus muliebris, and the ornaments of her body, and though of a great value, they were extra communionem bonorum: and found, if the Duchess's intromission with these jewels, since her Lord's death, be proven, she ought to be liable to the legacies juxta valorem; but assoilyied the Duchess from the article of £700, as the debursed expense in building the Mains at Leidington, though she had succeeded in the right of that land by a gratuitous disposition, seeing the Duke was not bankrupt; but sustained his allegeance, That she promised him payment of it;—to be proved by her Grace's oath.
Vol. I. Page 547.
1694. December 14.—Alexander Maitland and Hary Hamilton, against the Duchess of Lauderdale, about the legacy of the jewels. The Lords varied from what they did before, (18th January 1693;) and now found it was not speciale legatum, the jewels themselves not being left, but a legacy out of the price of them; as also, that there could be no onus reale here on the jewels, they being appointed by the Countess's testament to be sold, and so might freely be transmitted as any other moveables; and that the Duke, having got them from the Lady Boghall, and given them to his Duchess, she cannot be liable, the Duke being then in an opulent and solvent condition, (though his estate be now encumbered;) and he having got the Lady Yester's right, who was nearest of kin to the Countess, and having confirmed the testament, it gave him a sufficient right to the jewels, besides his right jure mariti, except the paraphernalia, which the Lords interpreted to be her mundus muliebris. But the Lords thought, if there were any force, threats, or concussion in the way, by which the Duke caused get up the jewels at Paris from the Lady Boghall, that this would be vitium reale, and make the Duchess still liable for thir legacies; seeing actio metus est in rem.
