Anne Ingram and Others, v. Mary Steinson and Others
Date: 22 January 1801 Case No. No. 2.
Objection to a testament, that the instrumentary witnesses were legatees for small sums, and that one of them was also one of the executors named in it; repelled.
Click here to view a pdf copy of this documet : PDF Copy
William Ellis executed a testament, in which he appointed James Ross, James Steinson, and Mary Steinson his wife, his executors; and, among other legacies, he bequeathed a clock, and £5 to buy mournings, to Ross; and £5 for the same purpose to Alexander Tillary, the writer of the deed. He left the residue of his fortune to his widow.
Ross and Tilary were the instrumentary witnesses.
Anne Ingram and others, the nearest of kin of William Ellis, brought a reduction of the deed, inter alia, on the ground that the instrumentary witnesses were legatees, and one of them an executor, contending that no person interested in a deed can be a witness in support of it; Ersk. B. 4. Tit. 2. § 27.
Answered; Trifling marks of respect shewn to instrumentary witnesses cannot affect the validity of a deed. Besides, as they merely attest the granter's subscription, the usual objections, whether of interest or of propinquity, do not apply to them; D. Lib. 28. T. 1. L. 20. 8th March 1685, Grahame against Marquis of Montrose, No. 115. p. 16887; 23d November, 1708, Sym and Scot against Donaldson, No. 119. p. 16891; Falconer against Arbuthnot, No. 24. p. 16817; 19th December 1786, Scott against Caverhill, No. 204. p. 16779. At all events, the objection could reach only the validity of the legacies and nomination of Ross as executor, but could not affect the interest of third parties.
The Lord Ordinary repelled the reasons of reduction.
The Lords, upon advising a petition with answers, unanimously adhered.
Lord Ordinary, Meskven.For the Pursuer, Lumsden.Alt. Williamson.
Fac. Coll. No. 211. p. 482.
