Scottish Court of Session Decisions

Subject_1 LEGACY.

Presbytery of Kirkcudbright
v.
Blair

1742, Feb. 12.
Case No. No. 10.

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Though a special legacy or an assignation of sums of money, that is revokable, is effectually revoked by uplifting the money assigned, yet a design to uplift it though ever so clear by giving orders to a writer to intimate to the debtor to pay and apply the money when paid to certain other uses, and lodging the bonds in his hands, the party dying before the money is paid, or any express revocation in writing, the special assignation subsists, 18th December 1740.—27th November 1741, Before answer grant diligence as prayed for, renit. President, Justice-Clerk, et me.

This case is stated before, 18th December 1740, and we had two questions, 1st, Whether the calling for the money from the debtors is itself a revocation? and 2dly, If it is, whether we could allow the pursuer to prove by witnesses that he did it not animo to revoke the mortification? 1st, We found the witnesses could not be admitted; 2dly, We altered the former interlocutor, and found sufficient evidence to operate a revocation of the mortification.—N. B. This very morning in the case of Hugh Ross of Holm against his father's widow, a bond taken by the father to his wife in liferent which was revokable, and the father having charged with horning actually got payment of a part, we unanimously found that this was no revocation in so far as the money was not uplifted. I did not hear how they all voted, but the President and I differed as to this last from the interlocutor.—12th February 1742.