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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Chisholm and Others v. Macrae and Another [1904] ScotLR 41_300 (20 November 1904) URL: http://www.bailii.org/scot/cases/ScotCS/1904/41SLR0300.html Cite as: [1904] ScotLR 41_300, [1904] SLR 41_300 |
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A person who is nominated sole executor and intromitter under a settlement cannot competently act as notary in the execution of that settlement. Ferrie v. Ferrie's Trustees, January 23, 1863, 1 Macph. 291, followed.
The pursuers in this action sought reduction of a deed purporting to be the last will and testament of Farquhar Macrae, and signed on his behalf by the Rev. Duncan Macrae acting as notary. The testator, owing to paralysis, was incapable of writing, and the deed was written out by the Rev. Duncan Macrae. It was in the following terms:—“I, Farquhar Macrae, residing at Letterfearn, in the parish of Glenshiel, as by this, my last will and testament, leave and bequeath all that may belong or be resting-owing to me at the time of my death, as under; and for the purpose of carrying out the provisions of this will I hereby appoint the Reverend Duncan Macrae, minister of Glenshiel, to be my sole executor and intromitter with my moveable estate, with all powers competent to an executor according to law; and I ordain my said executor to pay out of present monies funeral expenses, &c., and various legacies. The Rev. Duncan Macrae was not among the beneficiaries.
The pursuers argued that following Ferrie v. Ferrie's Trustees, 1863, 1 Macph. 291, the deed was not duly executed and was accordingly invalid, in respect that the notary by whom it bore to be signed
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had an interest conferred on him by the deed. The defenders argued that the case of Ferrie was distinguishable from the present one.
“But then it was argued that this was an exceptional case, the kind of case which Lord Deas shadowed in his judgment in the case of Ferrie as a possible exception to the rule there laid down. But even assuming that the case figured by Lord Deas would form an exception, this case does not come up to it, because it is admitted that other gentlemen competent to act as notaries were within reach, and among others the very medical gentleman who was attending the testator. So far from there being special circumstances in this case to make it an exception to the rule, it seems to me to be a strong case for the application of the rule, because Mr Macrae was not only the notary who executed the settlement, but he himself had prepared it. I shall therefore sustain the first plea-in-law for the pursuers and grant decree of reduction.”
Decree of reduction was pronounced.
A reclaiming-note was presented, but subsequently withdrawn.
Counsel for the Pursuers— M'Lennan— Forbes. Agent— Alexander Ross, S.S.C.
Counsel for the Defender— Cooper— Welsh. Agents— Forbes, Dallas, & Co., W.S.
