Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. III.

Deeds in favour of Children or near Relations, whether presumed in satisfaction of former revocable settlements?

Mr Walter Stirling
v.
Alexander Deans and Robert Watson of Muirhouse, his tutor

Date: 20 June 1704
Case No. No 117.

A testator legated a sum to his sister, with which he burdened his executors. Two years after he gave her assignation to a sum precisely the same. The last having no relation to the first, they were found both to be due.

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Thomas Deans, by his testament in 1669, legated to Anna Deans his sister 6000 merks, and burdened his heir and executor with if. In 1701, he likewise assigns her to 6000 merks, to be paid by Patrick Steill out of what he owed him (as mentioned, 3d Feb. 1704, voce Warrandice). Anna dispones these two sums to Mr Walter Stirling, her husband; and having first pursued Patrick Steill, and meeting with difficulties there, because of his breaking, now pursues Alexander Deans, as executor to Thomas the granter, for payment of the first 6000 merks contained in the testament. Alleged for him, That, by the posterior assignation to the same individual sum of 6000 merks, the former is satisfied, extinct, and revoked; and both being gratuitous donations, law and reason presume the last is given in satisfaction of the first; and he being debtor in the warrandice of the first, non præsumitur donare; and it is a certain rule in law, that duæ causæ lucrativas non possunt concurrere in eandem rem et personam. Answered, Though both the rights be for love and favour, and for the like sum, and betwixt the same persons, yet they must be reputed two distinct liberalities, seeing they are left by different writs, at sundry times, the one by testament, and the other by assignation; and the last is so far from bearing to be in satisfaction and lieu of the first, that it has no manner of relation to it at all, which certainly he would have done if he had designed the revocation of the former; and being his sister, both must subsist, especially he having given 12,000 merks to Mr Walter Pringle's relict, his other sister: And the special legacy of the 6000 merks left out of Patrick Steill's effects is like to fall exceedingly short. And as to the rule of two lucrative causes, it has many exceptions: For, 1mo, It holds only in speciebus et corporibus legatis, but not in summis et quantitatibus. If a horse be twice legated, it is but once due; but if certa quantitas vel summa be bis legata, non potest dici eandem rem legari, as Vinnius and other commentators observed, § 6. Institut. De legat.; 2do, The rule holds not where the same is left in different writs, as is clear from L. 2. D. De probat. where Celsus the lawyer determines excellently, if 500 merks be left in testament, and 500 merks to the same person by a posterior codicil, both are due, nisi heres gravatus probaverit posteriorem scripturam inanem esse; Neither, 3tio, Does it hold, si testator variaverit modum legandi, vel in quantitate vel qualitate, conditione, tempore, vel loco; in all which cases it is reputed a double additional legacy, especially if to be paid out of quite different funds, as here; and the one bears not to be in lieu of the other: Yea, L. Cod. De legat. goes a greater length, that a legatum rei alienæ is effectual, whether the defunct knew it to be res aliena or not, if so be it be legated to a near blood-relation. The Lords found, though it was the same testator, the same legatar, and the same sum, yet the last having no relation to the first, they were both due, and the last did not come in place of the first, nor absorb it, this being quæstio conjectura voluntatis defuncti.

Fol. Dic. v. 2. p. 143. Fountainhall, v. 2. p. 231.