Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. V.
Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?
Commissary of St Andrew's v. Balhousie
Date: 4 July 1665 Case No. No. 33.
Found in conformity with the above.
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The commissary of St. Andrew's having charged Hay of Balhousie to confirm his father's testament, he suspends, and alleges his father had disponed all his moveable goods and gear to him, and so nibil habuit in bonis, and offered him to prove, that he was in possession of the whole goods before his death. It was answered, The disposition was but simulate, in so far as it contained a power to the disponer to dispose upon any part of his moveables during all the days of his life; and if such a disposition were sustained, there should never be another testament confirmed; and all people would follow this course; which would not only exclude the quot, but keep the means of defuncts in obscuro.
The Lords, in respect of the generality of the disposition, and the clause foresaid, repelled the reason.
Fol. Dic. v. 2. p. 369. Stair, v. 1. p. 295.*** Gilmour reports this case:
In like manner, the same month, betwixt the Procurator-fiscal of the commissariot of St. Andrews and Hay of Balhousie,
The Lords ordained Balhousie to confirm, notwithstanding that he had a disposition, with possession, a long time before the death of Mr. Francis, his father, who was blind, and who had quitted the possession to his son, in respect the disposition carried a clause, that, notwithstanding thereof, his father might, in his own time, dispone any other way thereupon at his pleasure: and therefore, least the bishops should be prejudged of their quots by such dispositions, which all dying persons may grant, not only to their prejudice, but to the prejudice of creditors also, the Lords decerned ut supra. See No. 32.
Gilmour, No. 147. p. 105.*** Newbyth also reports this case:
George Hay of Balhousie being charged to confirm his father Mr. Francis Hay his testament, suspends, upon this reason, that his father, before his decease, had disponed to him his whole moveables, and all that should happen to belong to him at the time of his decease; and that he was in possession accordingly. The Lords, notwithstanding, found the letters orderly proceeded, and ordained the suspender to confirm, and had no respect to the disposition and possession, it being omnium bonorum, and containing a reservation and power to him to dispone thereupon in his own lifetime.
