Scottish Court of Session Decisions

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

Walter Corbet of Towcrose
v.
Hugh Corbet of Hardgray

Date: 18 December 1673

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In a reduction and suspension of a decreet, recovered at Towcrose's instance, against Hardgray, as executor nominated by Towcrose's mother, upon this reason,—That the decreet was unjustly given for the sum of £800, upon the oath of the executor, to his mother; because an executor's oath cannot constitute a debt to exhaust the testament in prejudice of the nearest of kin, or legacies contained in the testament:—

It was answered, That one of the legatees and nearest of kin being the executor's own daughter, the father's deposition is a sufficient probation of a debt; seeing, in law, it cannot be presumed that a father would depone in prejudice of his own child; which differs the case where an executor hath not that relation to the legators or nearest of kin: so that it was sufficient that the daughter did give her oath of credulity, if she had not reason to believe what her father deponed was true.

The Lords, finding that this case might be of great importance,—before answer ordained the daughter to be examined, if she was informed, or did know the verity of the debt; and, if she denied the same, they would then consider if her oath of credulity were sufficient against her.

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