Found in conformity with Loch against Dick, No 4. p. 6278.; that reduction of a deed, ex capite furoris, is competent after the granter's death, though no brief of idiotry had been expede during his life.
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The Lords decided that important case of the reduction, Anna Aird and Thomas Christie brewer in Edinburgh, her husband, against Andrew Gib in Dundee. John Aird merchant in Dundee makes a disposition of his heritage and moveables to Elizabeth Bowman, his wife, he wanting children. Anna Aird, his niece and nearest of kin to him, raises a reduction upon the head of fatuity and idiotry, wherein a mutual probation was allowed, before answer, anent his condition at and before granting that disposition. The pursuer proved, by sundry witnesses, that he had a sufficient capacity for business till 1679, after which he was seized with such a weakness in his judgment and brain that he became silly and incapable of doing ordinary business, and that it continued with him till 1695, when he made the dispositions quarrelled, and lasted till his death, which happened in the year 1696, so he was under this silliness and alienation of mind constantly for the space of 17 years, and ay till his death; that he seldom went abroad without a guide, and knew not the way home again, and was seldom at church, and when he came, used to gaze about him like a child, and draw the eyes of all the people on him; that his wife managed all, and gave orders for drawing the dispositions, &c. Gib, the defender, as nearest of kin to the wife, proved that the disposition was read over to him, and being asked to whom he would leave his gear, he always answered, ‘To whom but my wife?’ That a part of the land came by her; that he went to kirk and market after the disposition, and bought a leg of veal, and a book, and paid for them; and he gave the earth and stone with his own hand at giving of the sasine, and used to subscribe discharges: Which qualifications being conjoined with the natural and legal presumptions that every man is presumed rational till the contrary be proved, do sufficiently evince that he was sanæ mentis et satis rei suæ providus.
This being the sum of the probation on both sides, and coming to be advised, it was alleged for the defender, 1mo, That our law, by the 66th act 1475, had prescribed a certain form of trying idiotry and furiosity, viz. by a brief out of the Chancery, and an inquest before whom the party might be sifted, and they might instantly cognosce his idiotry or furiosity; and this method not being used in John Aird's lifetime, it cannot be now tried and cognosced after his death. 2do, Fatuity and weakness has not been sustained by us as a ground of reduction, as fury has been, for the acts of the one are far more convincing than what can arise from the other; for as there is no man so perfectly wise, but he will have some mixture of folly and weakness at some occasions, nullum magnum ingenium sine aliqua mixtura dementiæ; so there is no man so perfectly stupid and silly as not to give at some times small evidences of reason; and they may be famous for some lucky hits of wit by chance; so it is impossible to determine the limits and boundaries betwixt an absolute fool and a sensible man, there being so many degrees, that a standard is unfixable; and for some acts of levity and folly to declare men idiots, were a most dangerous preparative, especially after they are dead. Answered to the first, The Lords are the great inquest of the nation, and the trying by a brief noways excludes their cognition, and it has been so decided, Alexander contra Kinnear, No 3. p. 6278.; and Loch contra Dick, No 4. p. 6278.; where the furious person's heir was allowed to reduce, though never tried by a brief and inquest in his lifetime. To the second, Natural infirmity and weakness of spirit is equivalent to fury, and worse; for furiosity is a rabies that has oft dilucid intervals, whereas the other is frequently perpetual, et mente captus magis est in quiete. The Lords found the reduction receivable this way, and no necessity of its being tried in the party's lifetime.
Then alleged for the defender, The disposition must subsist for security of the obligement of her contract of marriage, giving her a power to dispose on 3000 merks. Answered, 1mo, She deceased before her husband. 2do, That faculty she never made use of, nor exercised the same. 3tio, If the disposition be null, as done by one incapable to give his consent or dispone, then it could neither ratify nor corroborate any provisions contained in her contract of marriage. The Lords repelled this allegation likewise; and then proceeded to advise the probation, and found the probation led by the pursuer more pregnant, and reduced the disposition as made by one incapable to give a clear and distinct consent; for it was thought all the acts of reason proved to have been done by him might have all been done by a child of six or seven years old, being taught and imposed on as he was, and that a parrot may repeat the words, “all to my wife,” if it be once instructed to pronounce them; and this was more than a careless sort of incogitancy and inadvertency, as some Philosophers have, like Archimedes, who was so intent upon his mathematical demonstrations, that he knew not where he was; and therefore the Lords reduced the disposition on the grounds of the common law, that fatuus consentire non videtur; and found the probation of fatuity and idiotry more pregnant than that adduced for his sobriety and judgment. The like was sustained in 1683, in a reduction pursued by one Lindsay against Maurice Trent, No 6. p. 6280.
Fol. Dic. v. 1. p. 421. Fountainhall, v. 2. p. 88.
