Found, that a husband, 12 or 13 days before his decease, being sick of a fever and flux, and not coming to kirk or market there after, could not infeft his wife in a liferent.
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Umquhile——Robertson gave infeftment of liferent to——Fleming his spouse, of a tenement of land, by the space of 12 or 13 days before his decease, which right was craved to be reduced by Robertson's heirs, upon this reason, viz. as done in lecto ægritudiuis, the husband being sick of a fever and flux four or five days before the infeftment, which continued to the time thereof, and continually to the time foresaid of his decease, he dying within so short a time, viz. 12 days;—Thereafter it was alleged by the defender, That the infeftment was but a liferent, given by the husband to the wife, who of the law could not be prohibit to help his relict upon death-bed. Attour it was offered to be proven, That at the time of the giving of the infeftment, and divers days there-after, the husband was in that state that he might have come out to the kirk or market, and that he lay not bed-fast, but sat at table, and eat and drank as at other times when he had health; and his sickness being a flux, that reason could not take away the excipient's right.——The Lords repelled the allegeance, and found the reason relevant.
Act. Mowat.Alt. Russel.Clerk, Scot.
Fol. Dic. v. 1. p. 217. Durie, p. 13.
