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John Duncan v Margaret Aikenhead. [1692] 4 Brn 29 (20 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040029-0056.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Duncan v. Margaret Aikenhead
Date: 20 December 1692
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John Duncan, writer, against Margaret Aikenhead. It was alleged,—That the Commissaries, in order to evacuate the act of Pari. 1690, that particular dispositions needed not be confirmed, they always preferred the nearest of kin offering to confirm, for the benefit of their own quot and dues. The Lords here preferred Duncan, the assignee, to the nearest of kin, though confirmed; and ordained him to get the possession only of all specially disponed, and contained in the two particular inventories under the defunct's hand, of the same date with the disposition, and whereto it relates, and so are a part of it. Some of the Lords inclined to think it only a legacy, and donatio mortis causa, seeing it assigned to all she should happen to have at the time of her decease; but the Lords decided ut supra, in respect there was a symbolic delivery, and the right bore onerous causes; and they were not, after so long a time, to be presumed to be her husband's, but her own; and they thought that otherwise the late act of Parliament might easily be frustrated and eluded.
