A man, on death-bed, cannot gift away his lying money, further than his own half or third.
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Margaret Brown being married upon one Thomson her husband, who died within the year after their marriage, she pursues the heir of her said husband for repetition of her tocher, viz. 2500 merks, which, by his discharge, he had granted was paid to him; and the defender alleging, That the discharge could not burden the heir, because it was subscribed by the defunct on his death-bed, and so could not prejudge the heir; and the pursuer replying, in fortification of the discharge, That the sum was really numerate and received by the defunct; the defender duplied, That the enumeration was elusory; for instantly after, a form of enumeration was made to the defunct, he being then on his death-bed, immediately rendered back again the sum to the payer of the same; and the pursuer replying, That albeit he had given it back again, yet the discharge must bind his heir; seeing the sum being once given to him, and so being beside him as a moveable sum, if he had given the same to any other, it was lawful for him so to do, and the doing thereof could not have prejudged the pursuer to have repeated the tocher discharged; even so, the giving of the sums to the pursuer liberates not the heir of the burden of the disharge, which makes him liable for the defunct's receipt of the tocher, in respect of the law, which provides repetition where the parties live not year and day, there being no bairns procreate betwixt them.——The Lords found, in respect of the discharge and real payment, albeit the discharge was made on death-bed and also, albeit the money was instantly re-delivered; that the heir of the defunct was liable to pay again the half of the sum discharged and no more; for they found that the defunct, by way of testament or legacy, might leave his own part, which is testable, to the pursuer; and so, by the like consequence, that the giving of the tocher back again was effectual, in respect of the discharge, granting receipt to make the defender liable for the half, as his legacy, which struck upon his own part, and so did affect the half; and therefore decerned the defender to pay to the pursuer the half of the sum contained in the discharge.
Act. ——.Alt. Gibson.Clerk, Scot.
Fol. Dic. v. 1. p. 212. Durie, p. 713.
