A disposition was found to be in lecto, because though the party went to kirk and market, yet he was supported.
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A disposition made in lecto ægritudinis is declared by the Lords to be when a person contracted a sickness whereof he died, and was not able to go out of his house without help; and all dispositions made in prejudice of his heirs during the time of his being in this estate are null, and although the sick person be brought out of his house to the kirk and market-place by the help and support of men and horse (as sometimes falls out) after the said disposition was made, and thereafter return to his house, and does not after then, once or twice, resort to kirk and market without help, as said is, the disposition will be thought done in lecto ægritudinis.
Fol. Dic. v. 1. p. 217. Auchinleck, MS. p. 54.*** Durie reports the same case.
In a reduction of a bond of alienation ef lands at the instance of the heir of the annailzier, because it was done in lecto ægritudinis; and the defender alleging, that the day of the date, of the said bond, the maker thereof came to the church, and heard the prayers, and thereafter came to the cross and market-place, and thereafter went and drank in two taverns, which were of his familiar acquaintance before, and then returned home again, and played at the cards with his friends, who came to visit him divers times thereafter, and lived after the bond a month or thereby; so that albeit he keeped the house all this time thereafter, yet that could not be counted as a deed done in lecto ægritudinis, he being, then sound in mind and knowledge, and of health of body; and he offered, to prove that he came out as said is, being then healthful and not supported by any who led him, but done freely of himself, without help or aid of any other. This allegeance was repelled, and the pursuer preferred to the probation, alleging impedimentum, that that day when the defunct came out, he was upholden, and led by the arms until that he did the acts foresaid, being then sick and infirm, of the sickness whereof he never recovered, but died within the space of twenty days or thereby thereafter; and albeit there was a preceding contract between the defunct and the defender, whereby either of them, made others their heirs, yet seeing the bond had no relation, nor yet bore to be done for implement of the said contract, the said bond was not sustained as depending on that preceeding obligation, without prejudice to pursue upon the contract prout de jure.
