An executor was allowed to prove that a gold chain had been in the possession of the deceased, from which property was to be presumed.
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Captain Home of Foord pursues Mrs Atchison his cousin, as he who is confirmed executor to his mother, that she may re-deliver to him a gold chain, or necklace, which was his mother's. Alleged, She could not restore it; because it was gifted to her by Rachel Home, the pursuer's sister, when the said Rachel was dying. Replied, That donation non relevat; because he offered to prove it was in his mother's custody and possession at the time of her decease, and so must belong to him as her executor, his sister Rachel having no right thereto. Duplied, Possession in mobilibus supposes a title, and both the defender, and her author Rachel Home, who gifted it to her mortis causa, possessed it 11 years without ever being quarrelled: Ergo, “The Lords found it relevant for the pursuer to prove, that the said gold chain was in his mother's possession at the time of her decease, to give him right thereto, as her executor; as also, sustained this duply as relevant to the defender to prove, for eliding the pursuer's right, that Rachel Home, her author, wore it in her mother's lifetime about her neck, or that she was then in possession of it. And allowed to both parties a conjunct probation for proving thereof.”—Which probation being led, and this day advised by the Lords, “They, in supplement thereof, ordained the defender to give her oath anent her own, and her author's, possession of the said chain; whereon if she depone affirmative, they will prefer her, as having best right thereto.”
