Reserved Faculties whether reducible upon Death-bed.
Dame Margaret Hay v. George Seaton of Barnes,
Date: 28 June 1662 Case No. No 61.
A man disponed his estate to his heir with a reserved faculty to burden it with a certain sum. The burden was sustained against the heir, though the faculty was exercised upon death-bed.
Click here to view a pdf copy of this documet : PDF Copy
Umquhile Sir John Seaton of Barnes, having provided George Seaton his son, by his contract of marriage, to his lands of Barnes, some differences rose amongst them, upon fulfilling of some conditions in the contract: For settling thereof, there was a minute extended by a decreet of the Judges, in anno 1658, by which the said Dame Margaret Hay, second wife to the said Sir John, was provided to L. 100 Sterling in liferent; and it was provided, that Sir John might burden the estate with 10,000 merks to any person he pleased, to which George his son did consent, and obliged himself to be a principal disponer. Sir John assigned that clause, and destinated that provision, for Henry Seaton his son in fee, and for the said Dame Margaret Hay in liferent; whereupon she obtained decreet before the Lords, the last session. George suspends the decreet, and raises reduction, on this reason, that the foresaid clause gave only power to Sir John to burden the estate with 10,000 merks, in which case George was to consent and dispone, which can only be understood of a valid, legal, and effectual burden thereof; but this assignation is no such burden, because it is done in lecto ægritudinis, and so cannot prejudge George, Who is heir, at least apparent heir, to his father. The charger answered, That the reason was no way relevant, 1st, because this provision was in favours of the defunct's wife and children, and so is not a voluntary deed, but an implement of the natural obligation of providing these. 2dly, This provision, as to the substance of it, is made in the minute, and extended contract, in the father's health; and there is nothing done on death-bed but the designation of the person, which is nothing else than if a parent should, in his lifetime, give out sums payable to his bairns, leaving their names blank, and should on death-bed fill up their names. The suspender answered, That he opponed the clause, not bearing de presenti a burden of the land, but a power to his father to burden; neither having any mention of death-bed, or in articulo mortis, or at any time during his life; and though the deed, on death-bed, be in favours of wife and children, it hath never been sustained by the Lords in no time, though some have thought it the most favourable case.
The Lords sustained the provision, and repelled the reason of reduction, assoilzied therefrom, and found the letters orderly proceeded.
