Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Children of Shorswood
v.
Magdalen Shorswood

Date: 24 July 1669

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In an exhibition and delivery, pursued by the children of the brother and sister of Thomas Shorswood, against Magdalen, another sister, of an assignation to an heritable bond granted by Cunningham-head to the defunct: It being alleged for the defender, That she, being heir-portioner, was not obliged to deliver the same; seeing it was never delivered by the defunct himself; without which the pursuers could have no right, the bond being heritable:—It was answered, That the defunct's liferent, being reserved, with a power to dispose of the bond at his pleasure, during lifetime, he had just reason to keep the same in his own custody; and that it was offered to be proven, that, on death-bed, he gave the key of his cabinet, where the bonds and other papers lay, that, after his decease, they might be delivered according as he had ordained; so that the debate was, if the assignation, being made to an heritable bond a year and a half before his sickness, with the foresaid reservation, and an order given for delivery upon death-bed, did give the assignee a right to pursue for delivery.

The Lords, finding this to be of a general concernment, would not pronounce their interlocutor upon this point: but it being confessed by the defender, that she did likewise take out of the cabinet an assignation to a wadset made in her own favours, and if both the wadset and this bond had remained undelivered, the pursuers would have had more for their share, as heirs-portioners, than the bond in question would amount to;—they ordained, That the defender should deliver up this assignation to the pursuer, or otherwise should return again her own assignation and wadset taken out of the cabinet, to the effect the whole heirs-portioners might pursue their rights as if none of the assignations had been delivered.

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