Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Jean Craick
v.
Anne Napier

Date: 26 June 1739

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[Vide Kilk., No. 2, Minor; C. Home, No. 121; Elch., No. 7, Executor, and No. 7, Minor.]

The Lords found, 1mo, That, in respect the substitution left the free disposal of the subject to the daughter, and only took place in case she died without disposing of it, therefore the father had full power to make such a substitution. 2do, That the assignation or translation to Anne Napier, though made by a minor to her curatrix, was valid; either because it was revocable at pleasure, and therefore more of a testamentary nature, than of a deed inter vivos; or because, in this case, Anne Napier seemed rather to be named curatrix ad certum effectum than ad omnia. Arniston even denied that the maxim, Tutor non potest esse auctor in rem suam, obtained in this case more than it did betwixt man and wife. 3tio, As to the testament, the Lords found that it was likewise a valid conveyance of the subject in question; and repelled the allegeance, that the bond was made heritable by the substitution, and so could not be transmitted by testament, or that, supposing it was testable, it could not be conveyed by these general words, executor and universal legatar, which can give no more than what would have gone to the executor dative if there had been no testament.