Effect of a Blank Writ after the Death of the Proprietor.
Colin M'Kenzie v. John Sutherland
Date: 25 January 1695 Case No. No 15.
A disposition signed blank, in the name of the disponee, and filled up after the granter's death, was reduced.
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Philiphaugh reported Mr Colin Mackenzie, son to Pluscarden, contra John Sutherland, son to Lord Duffus. Major Mackenzie being at Lord Duffus's house, he subscribes a disposition of his whole means and estate; but it is consessed to have been blank when he signed; and some days after falls sick of a fever and dies. His brother Colin claiming his estate, the Lord Duffus produces that disposition now filled up in the name of his son John; whereof Colin raises a reduction, offering to prove it was blank when signed, and put up by him, in presence of the writer and witnesses, in his letter case in his pocket, so that Duffus must prove it was filled up with his son's name, who was a boy of six years old, before he took the sickness whereof he died; and that it was delivered to him by the Major; else it is presumable they have found it blank, after his death, in his pocket, and filled up the name in it.—Answered, It is now in their hands, and they cannot be burdened to prove delivery; and esto he got it blank, yet law presumes he was, by that delivery, allowed to fill up his own name in it. And he and his Lady offered to depone (seeing his son could not,) that they received it from the Major. Many of the Lords were clear that Duffus ought to be burdened with the proof of the time of delivery, and the filling up of the name; seeing the circumstances of its being once blank, and his sudden falling sick, and dying in their house, made all against them; likewise that he had totally past over his nearest relations for whom he had a tender affection. But, to have the whole matter before them, they made an act before answer, allowing either party to prove the whole circumstances, qualifications and presumptions of the matters of fact alleged on either side.
1697 December 29.
Major M'Kenzie, son to the Laird of Pluscarden, being at Lord Duffus's house in the north, takes a fever, and dies. The Lady Duffus then produces a disposition omnium bonorum, made by the Major in favour of John Sutherland, her fourth son, an infant; which right carried away the sum of 10,000 merks Duffus was owing the Major by bond; whereupon Colin M'Kenzie, goldsmith in Edinburgh, the Major's brother, raised a reduction of the said disposition, on sundry grounds; that the Major's father, mother, and brethren, being low in their fortunes, it is not to be presumed he would have disinherited them all, and left them nothing, without a cause: That this disposition has been signed blank, and found in the Major's pocket after his death, and so filled up. For eliding of these qualifications, Duffus condescended on adminicles to astruct and fortify the right; that he offered to prove the Major then, and before his sickness, declared, he was so obliged to my Lord Duffus, that he would leave one of his sons his heir; and the right being now in his hand, as fiduciary and trustee for his son, it could not be taken from them—The Lords, before answer, allowed a conjunct probation, (as mentioned 25th January 1695,) which being this day advised, it was argued, that from the witnesses depositions, it appeared, this disposition was not filled up till after the Major's death; and though the Lady deponed she had his order for doing of it, yet that being a mandate, petit morte mandatoris, and could not be executed thereafter: Yea, though he had filled it up after he took the sickness, it was still reducible ex capite lecti, at the instance of his heir: And some proved that the Major expressed his intentions of listing his money out of Duffus's hand.—Answered, They opponed the pregnant testimonies of several witnesses, bearing his full design to settle any thing he had on my Lord Duffus's family.——The Lords, on the whole matter, reduced the disposition, and preferred his heir; and as for the purposes and resolutions, they are not fixed acts of the mind, and are ambulatory and revocable at pleasure.
Fol. Dic. v. 1. p. 103. Fountainhall, v. 1. p. 663. & 806.
