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Markland, relict of Thomson, pursues Thomson, son and executor to her husband, for her third part of a bond of L. 1000, made by Summer, to content and pay to her husband the sum of L. 1000, heibeing in life, and failing of him by decease, to the said Thomson, his heir, or executor. The husband dies before the term of payment contained in the bond. The relict pursues for her third, as being in bonis defuncti so long as he lived; likeas he might have discharged the sum in his own time, and would have fallen under escheat, and that it could not be of another nature than donatio mortis causa. To which it was answered, That lex obligationis, and the will of the defunct, the time of the making of the bond, should be more respected, who declared by the express words of the bond, that the sum of it was unpaid to him during his lifetime, should pertain to the substitute in the bond, and to no other person, whensoever he should decease; which exception, the Lords found relevant, and that the whole sum contained in the bond should pertain to the person substituted; and ordained this decision to be observed.
