Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Cliftonhall and His Wife
v.
David Oswall

1687. January.

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A person named executor and universal legatar by his father, having filled up, in his own name, a blank moveable bond he found lying by the defunct and omitted out of the testament confirmed by him; the defunct's daughter did afterwards confirm the said bond, as executor ad omissa: The son's assignee pursued the debtor for payment. Alleged for the debtor, That the sum contained in the blank bond was in bonis defuncti; and, 2. Alleged for the sister, executor ad omissa, That the cedent had lost his interest in the sum, by dolosè omitting the same out of the principal confirmed testament. Answered for the pursuer: 1. 'Tis denied that the bond was blank in the defunct's custody; 2. The son, as executor and universal legatar, had right thereto; 3. Though omissions in executors, who have a naked office, are punished by the custom of the commissaries, yet such omissions, in persons who have a positive interest of universal legacy, or legitime, &c. are not presumed fraudulent, but to happen through negligence. The Lords ordained trial to be taken if the bond was found lying blank by the defunct; but found, that the son, the cedent, and his assignee, would, by reason of the universal legacy, have right to the sum, though not confirmed.

Page 129, No. 472, [1st.]