A testament was reduced, because the order for drawing it was in May, but it was not signed sooner than August, and not then read over to the party.
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The Lords advised the debate in the reduction raised by the Lady Arbuthnot and her children of her husband’s nomination of tutors, contra Sir Thomas Burnet of Leys, and the other tutors thereing named. The reasons were; 1mo, It was written without his warrant and order; 2do, It was not read to him. The Lords repelled these two reasons, in respect of the answers, viz. That they offered to prove a mandate given, and that he had a testament of the same tenor made by him seven years before, and he caused renew it, with some alterations; 2do, Offered to prove, that it was either read to him at the time of subscribing it, or the substance and import of it was repeated to him, or he thereafter recapitulated the heads of it to himself: Both which answers were found relevant, and admitted to the defender’s probation.
The second reason of reduction was, That he was in a raging fever when he subscribed the testament, and had a deliquium that same day. Answered, They offered to prove acts of reason and judgment both before, at, and after subscribing, and probatis extremis præsumuntur media consimilia. The Lords, in such a case, would not determine a precise relevancy, but allowed a conjunct probation to either party, to prove in what condition the defunct was about the time of signing this nomination, to expiscate the truth, before answer. There was a third reason of reduction found relevant, viz. That the tutors had taken out the writs, and meddled with the same before making of inventory; which, by the late act of sederunt, is declared to be a ground of removing tutors as suspected.
1695. February 8.—At advising the probation in this reduction, the Lords found it clearly proved, That he was then of sound judgment, and not delirious, as was alleged; 2do, It appeared the order he gave for drawing his testament was in May, and it was not signed by him till August; and though we do not observe that subtility of the Roman law, that it should be actus continuus et unico contextu, yet it was too great an interval, unless it had been read at the subscribing; which was acknowledged by the witnesses not to have been done; nor the tenor and substance of it recapitulated, nor that he afterwards resumed the heads of it, farther than that he signed it, and told some of his friends he hoped they would be faithful in the trust he had reposed in them; and though the witnesses deponed on the scroll of a former testament, from which they copied this new one, yet that scroll did not appear; but What was produced in place of it was a former principal testament, margined, scored, and interlined in sundry places; and though the witnesses said it to be done by John Clerk’s servant, yet that testament appeared to have been written by John Clerk himself; so that the Lords, on the whole matter, reduced the testament, and found it not a legal probative writ.
