Scottish Court of Session Decisions

Subject_1 WRIT.

Picken
v.
Janet Crosbie

1749, July 22.
Case No. No. 25.

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The deceased Picken disponed an adjudication he had for L.500 Scots to his wife in liferent, and two daughters in fee. His son obtained a reduction in absence of this disposition, and they pursued a reduction of that decreet A proof before answer was allowed, and the pursuer proved sufficiently that the defunct could not write, if it was not sometimes by initial letters. But on the other hand, there was a clear proof by instrumentary witnesses and others, that he employed the writer to make out this deed, and passed his son because he had already left him more than any of his bairns; that he actually subscribed this deed, and for that end had his name and sirname written on another paper before him, that he might copy it, (which he appeared to have done very unskilfully, all the letters being capital letters); and, last, that he had shown it to other witnesses, and told them it was subscribed by him. And some persons suggesting that exceptions might be taken to it because of the subscription, he proposed to have it written over again to be signed by notaries, so that there was no doubt of the truth of the deed. The objection moved by the President against it was, that the defunct could not be said to know to write, and therefore he ought to have used notaries; and that sustaining such deeds would destroy the indirect manner of improbation by proving the granter could not write. But the majority were of a different opinion. It could not be said that the defunct could not write, when he did write; and that would at once destroy all writings signed only by initial letters. And as to the other, the proof adduced by the defender would have destroyed this deed, had all the subscribing witnesses been dead, and if it had not been clearly proved that the defunct actually subscribed the deed and owned it as his; and therefore we sustained it, 22d July. But, 39th November, we reduced the disposition, and assoilzied from the process, which is a reduction reductive of a decreet of reduction in absence. But, 12th January 1750, we altered, and sustained the deed;—26th July, Again altered.—29th November, Adhered.