Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

Ker
v.
Kers

Date: 25 January 1677

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A disposition being questioned, as being made in lecto, at least delivered then: It appeared by the deposition of one of the witnesses, used for proving the libel,—that the said writ was subscribed divers years before the disponer was on deathbed;—and, that the same was delivered before death-bed to the said witness; and,—that the defunct having called for it on death-bed, for drawing two other dispositions of the lands contained therein, one in favours of the pursuer, the disponer's heir, and the other in favours of a son of the disponer, who was father to the person in whose favours the disposition in question was made. And upon debate amongst the Lords, what should be the import of the said testimony; seeing the depositar did not declare in what terms the same was given to him by the disponer;—whether to the behoof of the said person, in whose favours it was made, or not; or upon any other account,—for keeping the same, so that the disponer might call for and alter it:

It was found, 1. That the disponer might have revoked the same; in respect it did not appear, that it was delivered to the behoof of the person to whom it was made.

This decision seems to be hard; in respect the disposition was now in the hands of the receiver; so that it was to be presumed that it was delivered, either to him, or to the said other person to his behoof: and the delivery ought to be construed, and presumed to have been, ut operetur: and the nature of the act itself imports that it should be to the behoof foresaid: It not being to be imagined, that the disponer had intended to have retained the power in his hands, either to make the said right effectual, or not, he would have given it out his hands.

2, The Lords found, upon the testimony foresaid, That the disponer having revoked the said disposition not simply, but to the effect foresaid, that the said two dispositions should be granted: the pursuer therefore had not right to the whole lands contained in the said first disposition; but that the same should divide, conform to the said two dispositions.

Mr Thomas Hay, Clerk.—In præsentia.

Page 216.