Effect of a marginal note without the solemnities.
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Umquhile Sir Alexander Gibson of Durie having given bond to his three daughters, for 20,000 merks of portion a piece, and in case of decease of any of them, her portion to belong to his heir-male; but upon the margin there is added, that the portion of the deceasing should accresce to the survivors; this Durie, brother and heir-male, pursues reduction and improbation of this bond, in so far as concerns the marginal addition, upon these grounds, that the same was not subscribed before the witnesses inserted in the bond, nor inserted at that time; and that it is written by another hand than his that wrote the body of the bond, and that it is contrary to the substitution of the body of the bond; and that albeit the writer of the body be inserted in the bond, and that the bond bears, that the date and witnesses are inserted by Durie himself, yet it does not bear that he inserted the marginal addition, which is of greater importance. It was answered, that bonds being subscribed before witnesses, their testimony reaches not only to the subscription on the foot, but to the subscription of joining the sheets, and whole marginal additions, which are as valid as any part of the body, unless it were positively proved by the witnesses that they remember that there was no addition on the margin when they subscribed; and albeit the marginal addition be of another hand, it is offered to be proved that it is the hand-writing of Durie himself, who inserted the date and witnesses, which is more solemn than any other writer, especially seeing the writer was not present, or witness, but only drew the draught of the bond; and albeit he mentions not the inserting of the marginal addition, but only the inserting of date and witnesses, that has been, because of the ordinary stile of bonds, whereof the date and witnesses are filled in by another hand, not being ordinary for these to write marginal additions; and as for the importance, or contrariety of the margin to the body, that is most ordinary, especially where the body is but a draught drawn by another hand, who has erred in his intention in the substitution. It was answered for the pursuer, that albeit the marginal addition should be proved to be holograph, yet unless it were proved to have been truly written, and subscribed at the date of the bond, it cannot prove that it is of the same date, or of any date before the defunct was on death-bed, and so it is null, and cannot prejudge the pursuer as heir, especially seeing the defunct having then no sons, might probably adject this in favours of his daughters, contrary to his former intention, which if it should take effect, would ruin the heir male.
The Lords having taken the deposition of the witnesses inserted, and both deponing that they did not remember whether the marginal addition was upon the bond when it was subscribed or no, and that it did appear by inspection, that the marginal addition was by another hand than that that wrote the body, and that it was not mentioned at the conclusion, where the defunct expressed, that he himself was filler up of the date and witnesses, and nothing was adduced to astruct that it was of a true date before his taking bed; upon all these considerations jointly, the Lords found that the marginal addition was not of the date of the bond, and that having no date of itself, it was not instructed to have been done before the defunct was on death-bed, and so was null as to the heir; but the Lords did not find that these allegeances severally could have derogated to the marginal addition, but only that all jointly were sufficient, the matter being also accorded amongst the parties.
