Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION VI.

Effects locally situated in Scotland must be under the direction of the Scots law; and conveyances of such effects must be in the Scots form.
Subject_3 SECT. III.

Testaments confirmed in England.

Catharine Wardlaw and her Husband,
v.
Sir George Maxwell of Orchardtoun and Maxwell of Cuill

Date: 21 January 1715
Case No. No 50.

The probate of a written testament was sustained as a title to found a process in Scotland, the pursuers confirming before extract.

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The deceased Jean Wardlaw, at her marriage with the deceased Maxwell of Cuill, gets an obligement from Orchardtoun, and another from her husband, to pay her L. 20 Sterling a-piece yearly after her said husband's death; and she surviving him, makes a testament in Ireland, leaving the bygones of these annuities to Catharine Wardlaw; and the probate of the testament bears it to have been subscribed in presence of three witnesses, whereof two are women, one of whom subscribes by initial letters only.

Catharine coming to pursue the Representatives of Orchardtoun and Cuill, it was alleged for them, That the testament was null, as to any effect in Scotland, 1mo, Because women cannot be sustained witnesses in Scotland; yea, non constat that they are sustained in England; 2do, Because the principal testament was not produced, but only an Irish writ of administration, which is not subscribed by any person.

Answered for the pursuers to the first, That the law and custom of each place must regulate, as to the solemnities requisite in subscribing, at least with respect to moveables; and that such is the custom of England is notour, and needs no probation. To the second, That the testament produced was authentic, from the records of the diocese where the principal testament was probated; which was all that possibly could be had in this case, since the principal testament behoved to be probated in Ireland, and must lie as a warrant for the probate in the clerk's hands; so that the pursuers behoved either to quit their claims in Ireland, or leave the principal there. But the probate produced having the seal of the office appended, and being attested by the clerk, as our sasines are commonly attested by notaries; it has all the requisites of a formal probated writ.

Replied for the defenders, That though it were probative, yet it cannot be a title in Scotland, unless the pursuers had applied for a confirmation of the goods in Scotland, as the Lords found, Rob contra French, No 49. p. 4497.

Duplied for the pursuers, That though this were true as to administrations ab intestato, which can indeed go no further than the jurisdiction of the granter; yet the administration here proceeding upon the defunct's testament, it may be confirmed in any judicature, with respect to all the defunct's goods. Thus, in the case Lawson contra Kello, No 48. p. 4497. the Lords sustained action at the instance of Lawson, upon the title of executrix, nominated by her husband in a testament confirmed at London. And as to the decision objected, the speciality thereof was, that the executrix confirmed in England was competing, and renounced to be executrix; and therefore the Lords found necessity of a new confirmation.

The Lords sustained the title libelled on, as a sufficient title in this process, the pursuers confirming before extract.

Act. Boswel. Alt. Ila. Clerk, Dalrymple. Fol. Dic. v. 1. p. 321. Bruce, No 36. p. 45.