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In a reduction, by a relict, of an assignation made by her to her brother-in-law, on this ground, That it was for the behoof of her husband, and the defender his brother's name borrowed, because the husband could not consent in favour of himself, and so revocable as donatio inter virum et uxorem; the Lords, ex officio, having taken the defender's oath, he deponed, That he got the assignation, sent him from his brother some years before his death, in security of a L. 1000 due to him by his brother. The circumstances, inferring the trust were, 1mo, That the assignation was omnium bonorum, without reservation of liferent or aliment, granted at a time when the pursuer was in imminent danger of death; and it was extremely improbable she would have made such right in favour of stranger; 2do, The husband did uplift of his wife's effects, after the assignation, above 20,000 merks, and the defender was a subscribing witness to many of the discharges, without once offering to interpose; 3tio, The defender did not allege he got the assignation from the pursuer, or from any person empowered by her to make delivery, and so it was never a truly delivered evident. The defender answered, He forbore to make use of his assignation, because, his brother having no children, he expected to be his heir, and was unwilling to cross him. The Lords found the evidences of trust relevant and proved, and found the assignation revocable, unless the defender should instruct he was creditor to his brother at the date of the assignation.
Fol. Dic. v. 2. p. 271. Stair.
*** This case in No 334p. 6129. voce Husband and Wife.
