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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Brydon v. Brydon's Executors. [1822] ScotJCR 3_Murray_123 (17 July 1822)
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Cite as: [1822] ScotJCR 3_Murray_123
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SCOTTISH_HoL_JURY_COURT
Page: 123↓
(1822) 3 Murray 123
CASES TRIED IN THE JURY COURT.
No. 14
v.
PRESENT, LORD CHIEF COMMISSIONER.
Found, that a person was of a sound and disposing mind, and that it did not appear that a codicil had been drawn out without instructions, &c.
Reduction of a codicil.
“Whether, on the 14th day of November 1818, at the date of the codicil under reduction, alleged to have been executed by the deceased Robert Brydon, formerly at Green-end, in favour of the defenders, the said Robert Brydon was not of a sound and disposing mind, and was incapable of understanding his affairs?
Whether the said codicil was prepared and drawn out without instructions from the said Robert Brydon?
Whether the said codicil was not read over
Page: 124↓
A party producing one letter not bound to produce others, if it is intelligible without them.
When one letter was given in evidence,
Cockburn, for the defenders, They are bound to produce the series of letters referred to.
Lord Chief Commissioner.— After hearing this letter read, if it is not intelligible without another, I will order that other to be produced.
After hearing the contents of the letter, his Lordship stated, That he did not see any reason to order production of the others.
Moncreiff, for the pursuer.—This is to set aside a deed, which altered a prior and a rational deed.
From the state Brydon was in, he could not give instructions for the preparation of the deed; and we shall prove that it was not read in presence of the instrumentary witnesses.
Cockburn.—The questions here are, Whether this person was capable of expressing his will? and the presumption, both of law and sense, is in favour of capacity; and the deed being written by a man of intelligence and character,
Page: 125↓
It is not necessary that a deed should be read in presence of the witnesses.
Lord Chief Commissioner.—This is a very short case, and I shall not go through the whole evidence. Law presumes all to be properly and fairly executed, and, in England, it is a trite maxim, that, to get the better of the presumption, you must hit the bird in the eye. All that was made out by the first two witnesses was, that the person wandered sometimes; but after them, you have a witness more capable of giving information, who swears that Brydon had a complaint in his mouth, which rendered it difficult to understand what he said, but that his mind did not waver till within a month of his death. It is impossible for me to doubt in this case, but you are to consider the whole testimony.
If the deed is fair, and the party capable of understanding it, the law will presume that it has been read, unless the contrary is distinctly proved, and in this case there is no positive evidence that it was not read.
Verdict—That Brydon was of a sound and
Page: 126↓
Counsel:
Moncreiff and
Jeffrey, for the Pursuer.
Cockburn and
M' Neill, for the Defenders.
Solicitors: (Agents, Gibson, Christie, & Wardlaw, and R. Rattray, w. s.)