Scottish Court of Session Decisions

Subject_1 DECISOINS of THE LORDS OF COUNCIL AND SESSION. reported by ALXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PRESUMPTION.

v.

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In different provisions by a father to children, the last is supposed to cancel the first. So argued from the decision, Emilia Belsches against Sir Patrick Murray, New Coll., 22d December 1752. But this is a mistake. That decision proceeded upon this principle, That, as there was no natural obligation on Sir Patrick Murray to have provided Emilia Belsches, it was to be presumed that, by the second provision, he had done all he intended for her, and that he had forgot the first legacy, otherways he would either have included it in the bond or cancelled it. But it seems to be a principle in law, that, where the person who granted the provision is under a natural obligation to provide, both are held good, unless the one deed expressly cancel the other. This, however, is denied: and, by many, the above decision is held to be a standard rule, according to which all such cases fall to be determined, where it does not Clearly appear that a twofold provision is meant. And, as to affection of parents to children, this no doubt will operate so far as to support a claim to a moderate and reasonable provision ; but, in every other view, the natural and fair presumption is, that the last deed expresses the whole burden which the defunct intended to lay upon his heirs, unless some strong indication to the contrary shall appear.

Memorials, Irvine of Drum against Earl of Aberdeen, &c.