Margaret Fisher, Relict of Alexander Farquharson, v. Francis Smith and Elisebeth Shepherd his Wife
Date: 23 November 1771 Case No. No 16.
One pursued in an exhibition, who deponed, that, at desire of the maker, he had destroyed the deed called for, but only after the maker's death. Found to have acted unwarrantably, and subjected in payment of a bequest contained in the deed destroyed.
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The pursuer brought an action against the defenders, libelling, “That the deceased Mr John Shepherd executed a deed, giving or disponing to the pursuer's children a certain sum of money; which deed, about the time of his death, he delivered to Francis Smith or Elisabeth Shepherd, and which they still had in their custody, or had wilfully abstracted; and therefore calling for exhibition of the said deed.”
Besides these parties, three other persons, who were supposed to know something of the deed, were called as defenders; who, in substance, deponed, That they knew of such a will, and one of them swore that he had seen it in the hands of Francis Smith, had got from him a reading of it, and that there was a sum therein bequeathed to the pursuer's children.
Francis Smith deponed, That he saw the will in question, and that 400 merks were therein left to the pursuer's children; that Mr Shepherd desired him to do with the will what he pleased; and that, about the time of Mr Shepherd's death, or some time thereafter, he burnt the same. And Elisabeth Shepherd deponed to her having heard the will read; that it contained a legacy to the pursuer's children, and that her husband had told her he had burnt it.
The question having been reported to the Court.
The defender maintained, That this oath could not be divided; he had admitted that he had the will in his possession, and that he had destroyed it, but he had at the same time declared that he had done so in consequence of orders from the testator; so that this last was an intrinsic quality in his oath; that his conduct had not only been warranted, but, as he had followed the testator's directions, he would, had he acted otherwise, have been to blame.
The pursuer answered;
That the quality in Smith's oath was not intrinsic; there was no reference to oath as to the constitution of the legacy, that was proved aliunde; so that, as he had not now the deed to produce, it was incumbent upon him to prove that he had the testator's orders to destroy it; which, as it rested merely upon his own averment, had not been done. But even, according to his own statement, Smith had acted illegally; for as the deed had subsisted after the testator's death, it came to be his ultima voluntas, which no one had then power to cancel or destroy, 29th November 1679, Irvines contra Kirkpatrick, voce Qualified Oath; 16th July 1714, Corse contra Sir John Kennedy, Ibidem; 20th July 1749, Ewing contra Dundas, Ibidem.
The following interlocutor was pronounced, November 23. 1771, “Find sufficient evidedce, that the within-mentioned testament, containing a legacy of 400 merks to the pursuer's children, did exist after the testator's death, and was unwarrantably destroyed by the said Francis Smith; and although the same cannot now be exhibited by him, find there is sufficient foundation for an action for payment of said legacy, without necessity farther of proving the tenor of said testament.
Lord Ordinary, Monboddo.For Fisher, Jo. Douglas.For Smith, D. Græme.Clerk, Ross.
Fac. Col. No 111. p. 332.