Scottish Court of Session Decisions

Subject_1 QUOD POTUIT NON FECIT.

Isobel Moncrieff, and her Husband,
v.
Catharine Monypenny, Relict of George Moncrieff of Sauchop

Date: 20 July 1711
Case No. No 12.

A written testament reduced for informality, not sustained as a nuncupative legacy.

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In the process at the instance of Isobel Moncrieff as nearest of kin to George Moncrieff her brother, against Catharine Monypenny his relict, the Lords, 14th July 1710, vide Testament, having reduced the testament; which sentence was, upon the relict's appeal, affirmed in the House of Peers, Isobel Moncrieff and her husband pursued Catharine Monypenny for her intromissions with her husband's effect's.

Alleged for the defender; The written testament, though reduced, must subsist as a nuncupative testament to the extent of L. 100 Scots to each legatary, 7th July 1629, Wallace contra Muir, No 9. p. 1350.; because, the defunct's endeavouring ob majorem cautelam to have his will declared by writ, that he might have the greater freedom of disposing of his means, can never evacuate the nuncupative will, which is clear and formal in every respect; as the Lord Dirleton signed the last settlement of his estate, not only with his own hand, but also before two notaries and four witnesses, that if the holograph subscription had not been good, the writ might subsist by the notorial attestations, et e contra.

Replied for the pursuer; The written testament produced cannot subsist as a nuncupative; because one who declares his intention to make his will in writ, excludes all nuncupative wills, though the writ should be null for want of the legal solemnities, as effectually as the written testament, had it subsisted, would have left no place for a nuncupative will. Qui testamentum facere opinatus est, nec voluit quasi codicillos id valere, nec codicillos fecisse videtur, ideoque quod in illo testamento scriptum est, licet quasi in codicillis poterit valere, tamen non debetur. Whence the lawyers conclude, Si testator voluit facere testamentum in scriptis, et omiserit aliquas solennitates in eo requisitas, quæ tamen sufficiunt ad nuncupativum, ne quidem valere ut tale, quia quod voluit, in scriptis scil. testari, non potuit, et quod potuit, scil. nuncupare, non voluit. Quia una species non potest contra voluntatem constituents in aliam converti. perez. ad Codicem Lib. 6. Tit. 23. N. 19. Voet. in Pandect. Lib. 28. Tit. 1. N. 10. And though writs for sums above L. 100, subscribed by one notary and two witnesses, will be sustained for L. 100, it doth not follow, that a null written testament should subsist as a nuncupative, which is vitiosa transitio de genere in genus. But to run the parallel close, as in the foresaid case, it being the granter's will the writ should subsist for a greater sum than law allowed the same should be sustained for the sum allowed by law; so a nuncupative testament for L.200 Scots, might a pari be supported for L. 100, because of his inclination testari nuncupative, which cannot be pretended in this case.

The Lords found, That the testament could not be sustained as a nuncupative legacy.

Fol. Dic. v. 2. p. 308. Forbes, p. 531.