Effect of holograph as ascertaining the date, in a question of death bed.
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Lord Halcraig reported Ross and Adam Gordon of Inverbervie, his Trustee, against George Ross of Morinshie.—Mr Thomas Ross having sons by two several marriages, he dispones some tenements and acres to the eldest, and his lands of Morinshie to the said George, his eldest son of the second marriage. The son of the eldest son of the first marriage raises a reduction of the disposition made to the heir of the second marriage, on this ground, that it was done by a holograph writ, wanting witnesses, so non probat datam, but is presumed to have been signed on death-bed. Answered, There is no ground for this presumption here; because, the date is two years before the granter's decease, and is written fair and accurate, of a pertinent stile, which no man on death-bed could write or frame of such a length, and with so many clauses; likeas, he died of three days sickness, during which time, it was impossible to write such a long context of a paper, and have the firmness of judgment requisite thereto; and so it must necessarily have been done before his death-bed sickness: And though law presumes against holograph writs, that they are antedated, yet it is no such presumption, but it may be elided by contrary and more pregnant presumptions, as that it was read or seen, or some public use and document taken thereon before his sickness; and that sincerity and honesty after a long tract of time unquarrelled is rather presumed than fraud and deceit of antedating; seeing quod inesse debet inesse præsumitur, et dolus non est prasumendus; but ita est here, it is 20 years since the granter's death, and the son of the second marriage possessed all that time without trouble and molestation, which is a convincing evidence of the truth and sincerity of this disposition; and the Lords have sustained such holograph writs; Durie, 12th February 1629, Leslie, No 493. p. 12604.; and 22d January 1630, No 494. p. 12605. And seeing it bears a reservation of the father's liferent, this adminiculates it quoad the date; and the eldest son giving his father a discharge, on receiving his portion, can never quarrel this. Vide 28th June 1662, Seaton of Barns, No 61. p. 3246.; and Stair's Institutes, tit. Succession, p. 446. (465) where holograph writs, by a father to his children, are not subject to this suspicion of antedating, where they bear a faculty to alter, and a reservation of the liferent. Replied, If there be any uncontroverted principle, incorporated into the body and constitution of our law, this of holographs not being probative of their own dates is one, and this not by single decisions, but a constant tract in all the parts of our law. Thus a holograph discharge, bearing date before the denunciation, will not be credited to reduce the horning; 14th January 1662, Dickie contra Montgomery, No 497. p. 12606.; nay, it will not so much as prove against the heir; 14th November 1668, Calderwood, No 499. p. 12607.; albeit these be in favour of children; 22d June 1678, Birnies, No 58. p. 3242.; 24th June 1681, Dows, No 158. p. 11477.; and 21st June 1675, Braidie contra L. of Fernie, No 498. p. 12607.—Neither was it sustained to elide death-bed, that the party's disease was not an impedimentum rebus agendis, but made bargains, and acted rationally, living an year after, &c. as in the cases of Cleland of Faskin, No 87. p. 3305. and of Coupar and Balmerino, No 77. p. 3292. &c.—The Lords found they could not alter that fixed principle, that holograph proves not its own date; and, therefore, reduced; but allowed the Ordinary to hear them on the presumptions for eliding it, that it was read or seen by any in his liege poustie, or that he was so short a while sick, that he could not write it in that time, and anent the long peaceable possession the defender has had, without being ever questioned by his eldest brother, or his nephew, thereanent, and such like presumptions, to fortify and adminiculate the date of the disposition.
Fol. Dic. v. 2. p. 258. Fountainhall, v. 2. p. 54.
