Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Katharine Treeland v. Patrick Thomson
Date: 10 November 1699
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Katharine Treeland, relict of William Thomson, merchant in Glasgow, pursues reduction of a testament made by him, a few days before his death, in favour of Patrick Thomson, his chirurgeon, who furnished him medicines and drugs during his sickness, to the prejudice of a prior testament he had made in favour of his wife, they having no children alive. Their reasons were, That he was imposed on to make this last testament, leaving all to one who had no manner of relation to him, save only the name; and that he was upwards of eighty; and that ministers, writers, physicians, and chirurgeons, had great opportunities of influencing dying people, and abusing their trust, and deserved no encouragement. 2do. The said Patrick, by a back-bond and declaration, the day subsequent to the testament, had acknowledged his getting an assignation to sundry debts from the said William, the testator, and obliged himself to be countable for the same, his expenses being allowed him, and a gratuity for his pains; which was a plain revocation of the testament; and his granting the back-bond was a passing from his being executor nominated therein.
To the first it was answered,—There was neither law nor custom declaring chirurgeons incapable of legacies in a testament; and testators are not to be restrained in the free disposal of their goods, flowing from the sense of gratitude, and good offices done him, especially where he has no children. To the second, The assignation seems not to have been to the whole, but only to some particular debts that required present diligence to be done for recovery thereof; neither was this incompatible with the testament, nor any derogation thereto, seeing he might be both executor and assignee under back-bond.
The Lords considered, if his declaration had made him only countable to the defunct himself, in his own lifetime, then it might very well consist with the testament; but it bearing to hold trust to him and his heirs, it resolved itself into a trust, and was incompatible. However, the Lords, having suspicion of the case, ordained the assignation to be produced; and, before answer, allowed either party to adduce what further adminicles or probation either of them had, to fortify or impugn the testament; and ordained the witnesses inserted to be examined for expiscating the true matter of fact.
