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Scottish Court of Session Decisions >>
Douglas v Allan. [1733] Mor 15940 (11 July 1733)
URL: http://www.bailii.org/scot/cases/ScotCS/1733/Mor3615940-015.html Cite as:
[1733] Mor 15940
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A person in liege poustie, made a total settlement of his estate by disposition, whereby he conveyed in general all his effects heritable and moveable in favours of his wife in life-rent, and of his grand nephew in fee. In the same deed he conveys his whole moveables in favours of his wife, in case she should survive him, and names her sole executrix. After this he leaves several legacies, and lastly reserves to himself a power to alter; and there is a clause dispensing with the not delivery. In a reduction of this deed at the instance of the heir, it was alleged to be null, in so far as concerns the heritable subjects, because it was a deed of a testamentary nature, since the wife was named executrix in it; and, according to the opinion of my Lord Stair, deeds by testament, though done in liege poustie, have no more effect than on death-bed. Answered, The deed is nowise of a testamentary nature, nor nowise a testament, in that part of it which conveys the heritable subjects, but is a plain disposition inter vivos, made in liege poustie; and there is nothing in law to hinder the adjecting of a clause naming an executor in the most formal disposition of lands, yea, it has been known done in a contract of marriage; and why a disposition and a testament may not be in one paper, as well as in two different papers, no good reason can be assigned. The Lords assoilzied from the reduction.—See Appendix
