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Scottish Court of Session Decisions >>
Mrs Jean Whitefoord, and Dalrymple, her Husband, v Aiton and his Spouse. [1742] Mor 12338 (3 November 1742)
URL: http://www.bailii.org/scot/cases/ScotCS/1742/Mor2912338-117.html Cite as:
[1742] Mor 12338
Mrs Jean Whitefoord, and Dalrymple, her Husband, v. Aiton and his Spouse
Date: 3 November 1742 Case No. No 117.
A legacy found not competent to be proved by witnesses, to take away the effect of a prior donatio mortis causa constituted by writ.
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The deceased Doctor Hamilton having, by his missive in 1743, directed to Mrs Dalrymple, left her his watch in the following words; “I give you my watch, chain, and seal, which you shall enjoy after my death;” after the Doctor's death, she pursued Charles Aiton, in whose house he died, and who had got possession of the watch, for exhibition and delivery; and having referred the having of the watch to his oath, he deponed and acknowledged, “That he had the watch libelled at the Doctor's death, and that, in June 1736, when he was at Lochlomond attending the Doctor at the goat-whey, the Doctor delivered the watch to the deponent, and desired him to keep the same for the use of his son; and that, upon the deponent's refusing to take it, the Doctor pressed him to take it, telling him, he expected to die there, and it might be lost; whereupon the deponent carried the watch home, and had it ever since.”
As this quality was yielded to be extrinsic, especially in a landlord, in whose house the Doctor had died, it was for the deponent offered to be proved by witnesses, that the watch was delivered him in the way and manner deponed; and had the allegeance been, that it was simply gifted to him, the proof would have been admitted, the transmission of moveables by donation being probable by witnesses; but as by the allegeance as laid in his oath, it was no more than a legacy to him, the Lords “found, that the defunct's letter did constitute a donatio mortis causa in favour of the pursuer, and that a proof by witnesses was not competent in this case to take away the effect of a donation constituted by writ, and create a new legacy of the same.”
Fol. Dic. v. 4. p. 158. Kilkerran, (Proof.) No 5. p. 442.
*** Clerk Home's report of this case is No 25. p. 8072, voce Legacy.
