D. 443. Ker contra Kers. 25 January. 1677.
A Disposition being questioned, as being made in lecto, at least deliver∣ed then: It appeared by the Deposition of one of the Witnesses, used for proving the Lybel, that the said Write was subscribed diverse Years before the Disponer was on death-bed; and that the same was deli∣vered before death-bed to the said Witness: and that the Defunct having called for it on death-bed, for drawing two other Dispositions, of the Lands contained therein; one in favours of the Pursuer the Disponers Heir; and the other in favours of a Son of the Disponer, who was Father to the Person in whose favours the Disposition in question was made: And upon debate amongst the Lords, what should be the import of the said Te∣stimony, seing the Depositar did not declare in what Terms the same was given to him by the Disponer; whether to the behoof of the said Per∣son, in whose favours it was made or not; or upon any other account, for keeping the same, so that the Disponer might call for and alter it: It was Found, 1. That the Disponer might have revocked the same; In respect it did not appear, that it was delivered to the behoof of the Person to whom it was made.
This Decision seems to be hard; in respect the Disposition was now in the Hands of the Receiver, so that it was to be presumed, that it was de∣livered, either to him, or to the said other Person to his behoof: and the delivery ought to be construed, and presumed to have been, ut operetur: and the nature of the Act it self, imports that it should be to the behoof foresaid: It not being to be imagined, that if the Disponer had intend∣ed to have retained the Power in his Hands, either to make the said Right effectual, or not; he would have given it out off his Hands.
2. The Lords Found, Upon the Testimony foresaid, That the Dispo∣ner having revocked the said Disposition not simply, but to the effect fore∣said, that the said two Dispositions should be granted; The Pursuer there∣fore had not Right to the whole Lands, contained in the said first Dispo∣sition; but that the same should divide, conform to the said two Disposi∣tions. Mr. Thomas Hay Clerk. In praesentia.