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Scottish Court of Session Decisions >>
Grant v Grant. [1679] Mor 5943 (10 January 1679)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Mor1405943-142.html Cite as:
[1679] Mor 5943
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IV.
The Husband's powers with regard to the management of the common stock, and of the Children.
Grant v. Grant
Date: 10 January 1679 Case No. No 142.
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A man having disponed to his brother the whole sums and goods he should have at his death,“if he survived him, and the disponer have no children of his own,” the Lords found that this could not disappoint the wife of her legal interest in the goods in communion.
Fol. Dic. v. 1. p. 396. Stair.*** Fountainhall reports the same case:
A relict being pursued upon a general assignation to goods, for delivery, alleges it is only donatio mortis causa, collated in tempus mortis of the disponer, and so was. revocable, and revoked by a posterior right made to her,—Answered, It had not the requisites of a donatio mortis causa, and could never be revoked, nisi per supervenientiam liberorum, and in dubio a donation, (especially if in part it have onerous causes,) præsumitur inter vivos, et conditio est valida, l. 35. § 2. D. De donat. mortis causa. Et lege 13. § 1. in fine D. eodem. Donatio mortis causa may be left so, ut nullo casu sit ejus repetitio. See No 1. p. 3591. where a disposition to moveables, to take effect after the granter's death, excludes the executors.––The Lords preferred the first disposition to the second, except in so far as it was in implement of her contract; but annulled it quoad excessum; but found the first did not prejudge her of her half of the moveables as relict.
Fountainhall, MS.
*** See Stair's report of this case, No. 7. p. 3596.
