Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
David Chkisty v. James Christy
Date: 22 December 1682
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The debate between David and James Christies was this day advised; but the Lords being much divided, they superseded to give answer on it, till some farther points were debated.
The case was:—When Mr. James Christy died, he left only a daughter, whom he named his executor and universal legatar; and, failing of her, he leaves 3,000 merks to David Christy, his cousin, a part of whose means Mr James's father had got. He did not consider his wife might be with child; but she, eight months after his death, brings furth a son; and, the daughter being dead, they now refuse to pay David the 3,000 merks, because, ex agnatione et super-venientia illhispostumi, rumpitur, dissolvilar, et evanescil substitutio pitpilaris, ex pr£sumpta dejuncti patris voluntate, that, if he had considered his wife would bring him furth a son, he would never have burdened him with this legacy. And they founded this on Papinian's conjecture, in Lege 102 D. de Condit. Institut. l. 30 C. de Fideicom. l. 6 C. de Institut. et Subst., and the famed l. 8 C. de Revoc. Don. And though Accursius, &c. restrict that law to the precise case of patronus et liberties, yet Cujacius, lib. 20, observat. c. 5, extends it to all.
David Christy Alleged, The father's express will must preponder, and cannot be everted by conjectures, else you may arbitrarily make up defuncts' testaments; and this son had no right to moveables, because he succeeds to an opulent heritable estate, and his sister excluded him in mobilibus; and Mr James had good reason to leave David this legacy, because his father had got much of his means by a comprising led against David's father. And they cited for them Leg. ult. D. de Haired. Institut., and urged that the liberty of revoking a donation, ob supervenientiam liberorum, was, per dict. I. 8, only competent to the donatar himself, but not to his heir. Vide Papon's Arrests, lib. 11, tit. 1, num. 19; and St Augustine's excellent verdict on this case, in the Canon law, Cans. 17, Quæst. 4, Canone 43 seu ultimo.
