Deeds in favour of Children or near Relations, whether presumed in satisfaction of former revocable settlements?
Lady Dunnipace, and Taylor, her Trustee, v. Watson and Vert
Date: 6 July 1750 Case No. No 122.
A wife having buried her husband, when no funds appeared, was found preferable on a fund afterward emerging, it not being presumed she did it animo donandi.
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The Lady Dunnipace was at the charge of burying William Innes, her husband, when it was by every body believed he had not a sixpence of his own in the world; but, some years thereafter, a sum cast up, till then unknown, viz. a legacy that had been left to him by Doctor Fraser, which came to knowledge by a multiplepoinding raised by the Doctor's Executors; and that sum having been confirmed by the defunct's Executors, the Lady brought an action against them before the Commissaries, for the funeral expense, and other privileged debts, paid by her.
Their defence was, That these expenses had been laid out by her animo pietatis, and as her animus must be judged of as at the time they were laid out, she could not retract upon this posterior discovery; which the Commissaries “Repelled; and found the defenders liable for the sum, as by them modified;” and the Lords “Refused a bill of advocation.”
It was not thought to follow, that, because the Lady had not allowed her husband to lie unburied, therefore, she had renounced all claim for the expense upon his effects which she might happen to discover.—See Privileged Debt.
Fol. Dic. v. 4. p. 122. Kilkerran, (Presumption.) No 7. p. 430.*** D. Falconer reports this case:
1750. July 7. —William Taylor, Writer to the Signet, dying without any apparent funds, the Lady Dowager of Dunnipace, his relict, defrayed his funeral expenses; and there afterwards appearing a fund of a legacy which had been left him, and was confirmed by his creditors, she, by her assignee, William Taylor, writer in Edinburgh, obtained a decreet of cognition, and pursued the Executors for this privileged debt; in which the Commissaries found them liable; and the Lord Ordinary on the Bills refused an advocation.
Pleaded in a reclaiming bill; She having buried her husband, when no funds appeared, is presumed to have done it ex pietate, and cannot retract her resolution, and make a demand upon the executor.
Answered; She could not determine whether she would claim or not, till she saw a fund, and then she immediately brought her action.
The Lords adhered.
Act. H. Home.Alt. Millar,
D. Falconer, v. 2. No 145. p. 171.
