Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. VII.

Where the cause of granting is expressed, that must be the rule.

Cruikshank
v.
Cruikshank

Date: 16 June 1665
Case No. No 162.

A donatio mortis causa by a man to his nearest of kin, to whom he owed a small sum by bond, found not to be in satisfaction of that bond.

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George Cruikshank pursues the relict and executrix of Cruikshank his uncle, for payment of a bond of L. 400. The defender alleged, Absolvitor; because the defunct had granted an assignation of certain sums of money to David Cruikshariks, the pursuer's brother, wherein there was a provision in favour of the pursuer, that the said David should pay to him a thousand pounds, which mast be understood to be in satisfaction of this debt in the first place, nam nemo præsumitur donare quamdiu debet. The pursuer answered, That the foresaid rule hath many exceptions; for it being but a presumption, a stronger presumption in the contrary will elide it, as in this case. The defunct had no children, and had a considerable fortune, and the pursuer and the said David his brother were the defunct's nearest of kin; and albeit the foresaid disposition be not in the express terms of a legacy, yet it is donatio mortis causa; for it contains an express power to the defunct to dispone otherwise during his life, and in another provision therein it bears expressly, to be in satisfaction of debt due to that other party, and says not so as to the pursuer; all which are stronger extensive presumptions that the defunct meant to gift no less than, the whole thousand pounds:

Which the Lords found relevant.

Fol. Dic. v. 2. p. 146. Stair, v. 1. p. 282.