Scottish Court of Session Decisions

Subject_1 LEGACY.

John Barbour
v.
Agnes Hair

Date: 2 January 1753
Case No. No. 19.

Click here to view a pdf copy of this documet : PDF Copy

A husband, after leaving to his wife by his testament about the half of his effects, delivered to her two bills for above 300 merks, which he indorsed blank. After his death she possessed herself of all his writings. The executors having pursued an exhibition, she exhibited these bills and swore that he gave them to her for her own use. Thereafter she was allowed a proof to astruct the giving them for her own use, and did astruct it by one witness, but the other said only that he bade her lay these bills by themselves. The Lords sustained the relict's right to these bills;—but several were of a different opinion, and thought a wife's possession of her husband's bills indorsed blank was no evidence of his having given them to her in legacy, especially when she was possessed of all his writings; and thought her oath in the exhibition could be no proof for her, and that his giving them in legacy was not competent to be proved by witnesses, no more than a nuncupative testament or legacy above L.100 Scots; and that even the proof in a matter of that delicacy was not sufficient; and that the judgment in this case ought to be the same as if the bills were L.500 or L.1000 sterling value.