Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.

James Miller
v.
Robert Rainy

Date: 16 February 1700

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The Lords advised the probation betwixt James Miller, writer, and Robert Rainy in Falkirk. Helen Mathison, aunt to Miller, dispones her estate to him, reserving her own liferent and the nomination of sundry legacies, and a power to her to alter, in case her urgent and absolute necessities should require the same allenarly. After this she gives a new disposition to Rainy, narrating that she was redacted to straits, and that Miller had proven ungrateful to her; who, after her decease, raises a reduction of the first disposition made to Miller.

The Lords, before answer, allowed a conjunct probation of her condition at her death, if she was truly in straits, and of the said Miller his miscarriage to her, or if she was only, through misrepresentations, irritated against him. And the probation being advised, little appeared of her being reduced to urgent necessity, but, on the contrary, that she had money lying beside her at the time of her death: But it was proven that Miller had served inhibition against her on his disposition, and raised arrestment on sundry of her effects. And it was contended for Rainy, that she was the best judge of her own necessities; and having asserted it under her hand, it was a sufficient ground of revocation: Likeas, he had forfeited her favour by straitening her with the foresaid scandalous and indiscreet diligences of inhibition and arrestment.

Answered,—Her assertion, elicited from her by calumnies, can be no probation; and Mrs Mary Mauld having disponed her portion to Mr James Carnegy of Phineven, her cousin, with a reservation of liferent, and a power of disposal on it in case of necessity, and having made a posterior right of it to the Earl of Panmuir, the Lords, in 1678, preferred Phineven, and found she could not ad libitum revoke it. And l. ult. C. de Revoc. Donat. lays down the solid grounds on which such donations may be retracted upon atrocious injuries; but the using diligence against the donant is none of them: and what he did was from no disrespect to his aunt, but to prevent her being imposed on, and to secure his own right.

The Lords reduced the first disposition given to Miller. Against which he reclaimed by a petition; which the Lords declared they would farther consider, how far ingratitude with us may be a relevant reason of reduction of a gratuitous right.

Vol. II. Page 90.