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Scottish Court of Session Decisions >>
Houston v Houston. [1631] Mor 12307 (18 February 1631)
URL: http://www.bailii.org/scot/cases/ScotCS/1631/Mor2912307-067.html Cite as:
[1631] Mor 12307
A nuncupative testament cannot be proved by witnesses, to take away a former legacy constituted by writ.
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In this cause, mentioned 13th and 20th January 1631, No 5. p. 8049, the Lords now found the allegeance, offering to improve that bond, where it had the two initial letters of the maker's name, was not receivable, but repelled the same, seeing it was made in Ireland, according to the English law; conform whereto bonds, which are sealed by the maker, and bearing, to be sealed and delivered in presence of witnesses, as this bond bore, are valid, albeit not subscribed by the parties; also the Lords found, that this bond, albeit reputed is a legacy, yet being extant in a writ, was not to be taken away by an allegeance of a posterior nuncupative testament, made by the granter of the bond, he being then upon the sea within the ship, whereby he revoked all preceding legacies made by him; and which the defender offered to prove, by the mariners present for the time within the ship, who saw and heard the same, and which being quasi testamentum militare, et nuncupativum, licet non in scriptis, the defender alleged, was sufficient to evacuate this prior bond, it being found of the nature of a legacy only; which was repelled, for they founds that this bond in writ, was not revokable, by any such posterior deed, to be proved only by witnesess, there being no writ to verify the same.
