Death-bed Deeds are Effectual, and afford jus exigendi, unless Challenged by the Heir.
L Craigie-Wallace v. Wallace
Date: 12 July 1626 Case No. No 28.
An assignation being challenged as done on death-bed, the exception was not received, being proponed by the debtor, although the bond assigned was heritable, and he alleged, he was not in tute to pay to any except the heir; but the Lords ordained the assignee to find caution to warrant the debtor at the heir's hands.
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Laird Craigie-Wallace borrows from David Fullerton 8,000 merks; David, on his death-bed, makes Wallace of Menford assignee, which assignee having obtained the bond registrate at his instance, charges for payment; which charges are suspended, and the said assignation also by action desired to be reduced, both upon one reason, viz. “That the assignation was made by the defunct, upon his death-bed;” this bond being heritable, and so in prejudice of the heir, who could not be prejudged by the defunct on his death-bed; and the suspender could not be in tuto to pay to this assignee, seeing he would be compelled to pay the same again to the heir, who hath the only right thereto. This reason was not sustained at the debtor's instance, seeing the assignee was ordained by the Lords, to find good caution to warrand the suspender at the heir's hands; likeas the cedent, by his missive letters written to the same assignee before his sickness, confest the money to pertain properly to the assignee, and that his name was only borrowed thereto; and in the same letters promised to make the charger assignee; whereby the Lords found, that this reason was not competent to this debtor, he being also put in tuto by caution to warrand him at the heir's hands, as said is. And where the assignation was quarrelled in this same process by the debtor, as not sufficient, because it was subscribed by two notaries, whereas the maker thereof could write himself; this was repelled, because it was made by the cedent on his death-bed; neither was it found necessary to prove, that it was subscribed in his death-bed, seeing the assignation itself bore, “That the notaries subscribed for him, because he was then unable, being in his sickness upon his death-bed, to subscribe himself;” and which the saids notaries, in their subscriptions of the said assignation testified, and which the Lords found sufficient to qualify that it was done upon death-bed, without any other probation.
Act. Lawtic.Alt.——Clerk, Scot.
Fol. Dic. v. 1. p. 213. Durie, p. 214.
