Scottish Court of Session Decisions

Subject_1 PRESUMPTION.

Margaret, &c Nairn
v.
Creditors of Nairn

1749, Jan. 10.
Case No. No. 19.

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An heritable bond of L.10,000 being granted by Greenyards to his brother Robert, with a clause of return, pursuant to a settlement of their aunt the Lady of Drumkilbo, Robert before his death assigned 5000 merks of it to the daughters of his eldest brother, on the narrative of his brother's having been at the expense of his education at Leyden, and kept all his life after in his own family. Greenyards's creditors quarrelled this assignation, and Minto found that John could not gratuitously alter the return; but upon a reclaiming bill we allowed before answer a proof to astruct the onerous cause; and a proof being brought, the President thought the clause of return could hinder him to dispone gratuitously. Kilkerran differed, and looked on it as L. Tarsappie's settlement, and that it could not be altered gratuitously, but because of the proof it ought to be sustained;—and upon the vote it carried to sustain.