Scottish Court of Session Decisions

Subject_1 TRUST.

Tweeddies
v.
Tweeddie

Date: 22 December 1666
Case No. No. 6.

Presumptions of trust having been adduced, witnesses were admitted in corroboration.

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

Umquhile——Tweeddie of——having disponed his whole estate to his eldest son, at the same time, his son gives a bond to his mother, and her heirs, of 6000 merks. The mother being dead, the other five bairns pursue a declarator of trust against the heir, that this was the bairns' provision, put in the name of the mother, and offer to prove the same by the writer and witnesses inserted. It was answered, That trust was not so proveable, otherwise all rights might he inverted by witnesses, whose testimonies our law hath restricted to £. 100, It was answered, That much more was to be attributed to witnesses inserted, upon whose testimonies the parties condescend, and confide, than to common witnesses; 2do, Albeit witnesses were not receivable to prove trust alone, yet where there are strong presumptions concurring, they are admittable even to annul writs of the greatest importance, as is ordinarily used in the indirect manner of improbations; and here are strong presumptions, viz. that the father, at the time of this bond, did dispone to the defender, his eldest son, his whole estate, without a reservation of his own liferent, or any other thing, and there were five children beside, who had no provision; so that albeit this bond be conceived to the wife, her heirs and assignees, yet it cannot be presumed to be intended to have fallen back to the defender as her heir.

The Lords, in respect of the presumptions, were inclinable to admit the witnesses; but they, ordained the pursuers, before answer to what could make a sufficient: probation, to adduce such witnesses as they would make use of for astructing these presumptions and the trust.

Stair, v. 1. p. 418.