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Scottish Court of Session Decisions >>
Thomas Burnet of Kemnay v The Daughters of Sir Alexander Burnet of Craigmilne. [1696] 4 Brn 376 (15 July 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040376-0774.html Cite as:
[1696] 4 Brn 376
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Thomas Burnet of Kemnay v. The Daughters of Sir Alexander Burnet of Craigmilne
Date: 15 July 1696
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Halcraig reported Mr Thomas Burnet of Kemnay against the Daughters of the deceased Sir Alexander Burnet of Craigmilne, for exhibition of all tailyies to the heirs-male, to the effect that he, as being the apparent heir-male, may deliberate whether he will enter. The defence was,—We will not exhibit to you; because, by a revocation under the defunct's hands, he recalled and annulled all such tailyies upon disobligations received; and, if he founded upon any tailyie subsequent to that revocation, they are willing to depone thereanent.
Answered,—The revocation may be a good defence against delivery, but not against exhibition; for there may be mutual tailyies, or bearing clauses dispensing with the non-delivery, or renouncing all power to alter; in which cases they would not fall under this revocation; and the parties must not be made judges of the nature of tailyies, or the import and meaning of clauses, else an apparent heir may be cut out of all inspection ad deliberandum.
The Lords, on the one hand, thought it unreasonable to expose charter-chests to view, where such a document as a revocation indicated the alteration of the tailyier's mind; and, on the other hand, it was as dangerous to let parties judge on dubious and ambiguous clauses: therefore they took a middle way, ordaining the defenders to produce all tailyies lying beside the defunct, upon oath, and the Reporter to peruse the same; and, if he finds they do not fall under the revocation, or may be debateable, then he is to allow the pursuer inspection thereof, and to hear them how far the same are revoked.
