Death of a person instructed by 18 years absence, and a letter from a person who was a witness of his death.
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Umquhile Sir Robert Drummond of Meidup having disponed the lands of Scotstoun to Sir John Drummond of Burnbank, Mr John Drummond, writer in Edinburgh, his grand nephew, intending to reduce that disposition as on death-bed, grants a bond to William Laurie of 12000 merks, who thereupon having charged the said Mr John to enter heir in special to the lands of Scotstoun, to the said Sir Robert his granduncle, apprises from him all the right of the lands, that might be competent to him, if he were entered heir, and thereupon raises reduction of Sir John's right, as being granted by Sir Robert on death-bed, in prejudice of his nearest heirs, in whose place the pursuer now is by the apprising. It was alleged for the defender, No process upon any charge to enter heir against Mr John Drummond, because he is not the nearest apparent heir, but has an elder brother living. The pursuer answered, That the said elder brother had gone out of the country 18 years ago, and was commonly holden and reputed dead, likeas he produced a missive of one Creighton his comerade in the war abroad, bearing the circumstances of his sickness, death and burial, dated July 6th 1667. It was answered, That semel vivus semper præsumitur vivus nisi contrarium probetur, and what was alleged could be no probation, but some probabilities of death. The pursuer answered, That brokard is but præsumptio juris, and not præsumptio juris et de jure, and therefor only transfert onus probandi, which probation may be valid without witnesses, by such adminicles as the Lords shall find sufficient, which are here sufficiently alleged, viz. long absence, common fame, and a missive letter.
The Lords found, That 18 years absence, and being holden and reputed dead, was sufficient probation to take off the presumption of life, unless a stronger probation for the parties being on life were shown, than the naked presumption thereof.
Fol. Dic. v. 2. p. 263. Stair, v. 1. p. 671.
*** A similar decision was pronounced, 19th June 1663, Hay against Corstorphine, No 159. p. 5956, voce Husband and Wife.
