Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Margaret, Jean, and Mary Nairns, v. Mr Thomas Nairn of Craigton
Date: 25 December 1695
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Margaret, Jean, and Mary Nairns pursue a declarator of trust against Mr Thomas Nairn of Craigton, their brother, bearing, That their father left a great estate in moveables without making any distribution of it amongst his children; —that they all lived in common, for many years, in a universal society and communion of goods;—and their elder brother, now deceased, intromitted with the whole, though each of them had a share equal to his; and he, having administrated in trust, bought the lands of Craigton with it, upwards of £200 sterling of rent, and refused to count to them for their share; whereupon they employed Mr Thomas, then the second brother, to pursue him, which he accepted by taking an assignation from them, and giving a back-bond to be countable; and declaring, before Mr James Fraser of Brae, minister, and sundry others, that his brother designed to cheat both him and his sisters of their father's executry, but he would bring him to an account. Medio tempore, the elder brother dying, and Mr Thomas succeeding as heir to him, he gives back the assignation, and retires his back-bond, and then refuses to count to the sisters; and would now repudiate the trust he accepted when a younger brother; because, by the devolution of the succession, he was come in his brother's place; and so would continue the fraud his brother intended.
Alleged,—That a trust of this nature could not be now proven, after his brother's death, by witnesses, but only scripto vel juramento of the defender, and particularly the emission of words, which were of most dangerous consequence.
Answered,—In such a complex trust it was impossible to prove it without an expiscation of the whole circumstances, ex officio, by examining the debtors if they did not pay the whole sum to their defunct brother, by taking this defender's oath of calumny, whether he did not undertake the pursuit, and accepted an assignation under a back-bond, by calling Brae and others to depone, before whom he expressed himself on this point; and, though nuda verborum emissio be not probable by witnesses, yet qualifications of trust for discovering matters of fact are.
The Lords, finding a complication of probabilities here, allowed the pursuers, before answer, to adduce what probations they could, ex officio, for evincing this trust; though, where the circumstances are not pregnant, they only admit it probable scripto vel juramento of the defenders alleged to have been intrusted. Vid. Stair, 10th January 1672, Deuchar.
