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Margaret Adingston, relict of Francis Kinloch, factor at Paris, having the right of her husband's estate in her person, dispones it all in favours of Margaret Marjoribanks, her grandchild by a daughter, with a clause, that failing the said Margaret and heirs of her body, then a substitution to Gilmerton and others. Of the same date, she makes a testament, nominating her said grandchild to be her executrix and universal legatrix, but does not repeat the substitution. Nicholas Marjoribanks, sister to the said Margaret, and executrix confirmed to her, pursues for the moveable debts falling under executry. Alleged, You are only consanguinean sister to the defunct, and all the means came by her mother, and we as substitutes have the only right thereto. Answered, The grandmother's testament contained no such substitution, but was simple; and therefore James, Margaret's nearest of kin, must have the only right to the moveables. Replied, The disposition and testament being both of one date, the one cannot be a revocation of the other; neither is any mutation or alteration of the parties' design to be here presumed; so the two are to be reputed tanquam unicus contextus, and the clause of substitution in the disposition must be held as if it were repeated in the testament, et actus sunt ita interpretandi ut actus potius valeat quam pereat. Duplied, A testament, in construction of law, is ultima defuncti voluntas, and must derogate from all other deeds, and must imply a revocation of deeds which are not of a testamentary nature, though they be of the same date, and the testament must be the only rule for the transmission of moveables. The Lords, observing the disposition and testament to be both in favours of one person, found the clause of substitution behoved to take place in both, as the presumed will of the defunct.
Then alleged, Sundry of the debts were innovated by taking new corroborative securities to the said Margaret Marjoribanks, and her heirs and executors, which clearly conveyed them to Nicholas the pursuer. Answered, Novatio non præsumitur, and she was minor, and could neither invert nor alter her grandmother's destination of the succession; and no more could her curators do it, as was found, 14th July, 1667, Margaret Scot against Sir Laurence Scot, No. 8. p. 11344. voce Presumption, that bonds of corroboration, though conceived to different heirs, yet will fall and belong to the heirs in the first bond corroborated. The Lords found the taking of bonds of corroboration during the minority did not alter the substitution and first destination.
Fol. Dic. v. 2. p. 400. Fountainhall, v. 2. p. 61.
