In what Situations a Bastard enjoys the Power of Testing.
Anabel Ewing, Relict of Patrick Glen, v. John Semple
Date: 20 July 1739 Case No. No 11.
A bastard may convey his effects by a general disposition, if it is not of a testamentary nature.
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Anabel Ewing, as having right to a bond due to her deceased husband, by virtue of a general disposition from him, brought an action upon the passive titles against John Semple for payment. The defences were, 1mo, That Patrick Glen, the creditor in the bond, being a bastard, the pursuer had no sufficient title in her person to insist for payment, she having no particular right thereto, but only a general disposition, which could avail no more than a testament would have done, 2do, That the bond was null, in regard the writer was not designed before inserting of the witnesses, as law requires; and although it were not necessary for the writer of a paper to be designed before inserting of the witnesses, yet it is at least necessary that he should be some way or other certainly described, which he is not in the present case, the bond only bearing in the end of it to be subscribed before these witnesses, John Buchanan maltman in Dumbarton, and Adam Colquhoun servitor to James Duncanson at Garshake; writer hereof; which leaves it ambiguous whether Adam Colquhoun or James Duncanson, was writer thereof.
Answered for the pursuer: That her title not being revocable, was not of a testamentary nature, but was to be considered as a deed inter vivos; that the act of Parliament requiring the designing of the writer, before inserting of the witnesses, was in dissuetude; and that it is plain from the bond, Adam Colquhoun, one of the subscribing witnesses, is the writer thereof.
Replied: A bastard by law has no testamenti factio; neither can an executor be confirmed to him upon any other title than qua creditor; whence it follows, that, as the pursuer's title is in effect a testament, requiring confirmation in order to its establishing a complete right in the person of the disponee, who cannot be said to be a creditor to the defunct; that therefore there is here no habile transmission of the right, as appears from Stair, p. 427. (446.); and the decision 28th November 1691, Stewart;* where it was found, That a bastard's wife having a general disposition from her husband, could claim no right in virtue thereof, but had only that share of her husband's effects, that she would have been entitled to by the law, had no disposition been granted. 2do, By the express words of the statute 179. James VI. the bond in question ought to be found null, since the writer is not at all designed, before the inserting of the witnesses, as that law requires: And the defender is at a loss to understand how it can be said to be in dissuetude; as he believes, from the date thereof, to this day, very few writs of consequences, written by men of knowlege, have omitted the formality there required. But supposing it might be dispensed with still the writer should be designed with certainty; whereas here it is quite ambiguous whether Adam Colquhoun or James Duncanson wrote it, the words, writer hereof, being immediately subjoined to his name and designation. Nor will the 5th act, 3d Parl. Charles II. allow this defect to be supplied by a condescendence.
The Lords repelled the defences, in respect of the answer. See Writ.
