Scottish Court of Session Decisions

Subject_1 FORUM COMPETENS.
Subject_2 DIVISION VII.

Testament within what District it must be Confirmed.

Janet Nisbet and Patrick Bell merchant in Glasgow her Husband
v.
John Monro Chirurgion in Edinburgh, and his Spouse

Date: 16 February 1711
Case No. No 64.

The testament of a soldier dying without any fixed habitation in a town where the regiment he belonged to had lain 60 days before his death, ought to be confirmed by the Commissaries of Edinburgh tanquam commune forum, unless the defunct had resided in that town 40 days immediately preceding his death.

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John Nisbet lieutenant in Colonel Moncrieff's regiment, having died at Glasgow where the regiment lay at the time, there arose a competition for his share in the equivalent, betwixt Janet Nisbet executrix creditrix to him confirmed before the Commissary of Glasgow, and John Monro confirmed executor creditor to him before the Commissaries of Edinburgh. John Monro craved to be preferred, because, 1mo, All testaments ought to be confirmed in the commissariot where the defunct dwelt, Stair Instit. title Executry, § 81. Commissaries of Edinburgh and Brechin contra Earl of Panmure, No 60. p. 4847; for the act 1609, establishing the jurisdiction of Commissaries, restricts it to persons dwelling within their respective bounds; and ‘domicilium est ubi quis sedes et tabulas habebat, suarumque rerum constitutionem fecit, L. 203. ff. de verb. Signif. or, ubi quis larem rerumque suarum summam constituit, L. 7. Cod de Incolis; whence it is clear, that in the constitution of a dwelling place, animus remanendi is more considered than the actual stay; and forty days residence in a place, makes a man convenable there, not because his domicilium is presumed where he hath remained so long, but for that he is supposed to have leisure to defend himself, L. 17. § 2.ff. de judiciis. But, 2do, Lieutenant Nisbet could not be understood to have had his dwelling-place at Glasgow, seeing he was a young unmarried soldier, subject as to his abode to the arbitrary orders of others, and so could have no fixed habitation animo remanendi. For L. 23 ff. ad municipalem, miles ibi videtur habere domicilium, ubi meret, takes only place where the regiment itself hath a certain place of residence, as Legio Parthica, Legio Feretensis, Fretensis, &c. had in those provinces where they were quartered and paid for defence thereof. So soldiers in the castle of Edinburgh, or any other fixed garrison, have the garrison for their habitation, while they continue there; but when sent elsewhere upon expeditions. are held as peregrini, under which denomination all soldiers fixed to no certain post may be comprehended. 3tio, The Commissaries of Edinburgh have an undoubted right to confirm the testaments of all persons wanting a fixed abode, seeing where no inferior Commissary is competent to confirm, it is necessary to recur to the judex communis patriæ; as the Commissaries of Edinburgh only, for the same reason, have the privilege to confirm the testaments of such as die abroad out of the kingdom. Especially considering, that it was once the privilege of these Commissaries to confirm the testaments of all in Scotland, where the dead's part exceeded L. 50 Scots, as appears from the instructions to them under the Queen's hand anno 1563, inserted in Balfour's Practicks. See Appendix.

Replied for Janet Nisbet, Though a man's casual stay at a certain place for a little time doth not determine his domicilium, to make him incola, to infer honores, et onera, immunities and burdens, or to subject him to answer to actions laid against him, L. 7. Cod. de Incol. L. 203. ff. de Verb. signific. L. 19. ff. de judiciis; yet it is sufficient to constitute his domicilium for confirming his testament; except he had, as in the Earl of Panmure's case, a principal fixed residence elsewhere. And L. 23. § 1. ff. ad municipal, making a soldier's dwelling place to be ubi meret doth determine John Nisbet's at Glasgow, where he resided at the time of his death with the regiment. For the Roman regiments called Parthica, Feretensis, &c. were as much moveable, and under command, as any others; and the privilege of making a will more militari was not competent to them, because residing in such countries, seeing soldiers in ædibus or sedibus suis, behoved to make their testament more vulgari, and the privilege of a military testament was indulged only to those in procinctu. 2do, Though the Commissaries of Edinburgh confirm the testaments of those who die abroad, they have no privilege by the act 1609, as to confirming the testaments of persons dying within the kingdom, which must be confirmed by the Commissary of the particular bounds.

The Lords found it relevant to prefer John Monro to the subject libelled, that John Nisbet, soldier, had not resided at Glasgow forty days immediately before his decease, and had no fixed domicil there; notwithstanding that the regiment in which he was a soldier had resided at Glasgow sixty days before his death. For the Lords found, that in that case his testament ought to have been confirmed by the Commissaries of Edinburgh, tanquam commune forum.

Fol. Dic. v. 1. p. 331. Forbes, p. 498.