Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Turnbull
v.
Turnbull

Date: 21 February 1776

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It is held to be a principle in law that one cannot approbate and reprobate the same deed. The same principle holds, even although there should be two deeds, if they are parles ejusdem negotii, and made with a reference to one another. This occurred February 1776. Turnbull against Turnbull. Patrick Turnbull executed two deeds unico contextu,—one of his moveables, another of his heritage, and died the next day. In that of his moveables he burdened the disponee with a legacy of ₤50 to his heir at law; but he having brought a reduction, ex capite lecti, of the disposition to the heritage and having prevailed, —and having afterwards insisted for his legacy, “The Lord Justice-Clerk Ordinary, found, (21st July 1775) that the two deeds made one settlement of the defunct’s whole estate. That the pursuer could not both approbate and reprobate,—and having reprobated his uncle’s assignation of the tack, by his reduction, on the head of death-bed, he could not now claim the legacy contained in the other deed.”

To this interlocutor the Lords adhered, and gave the expense of extract, 21st February 1776.

Decisions cited for the defender:—the case of Dundonald, 20th February 1729; 1st February 1671, Pringle; 17th January 1758, Cunningham.