Reserved Faculties whether reducible upon Death-bed.
Margaret Bryson v. Andrew Bryson
Date: 16 December 1668 Case No. No 63.
A father disponed his estate to his eldest son, reserving power, at any time during his life, to alter.
This power he exercised on death-bed, which was found good against the disponee, who was heir, as he had accepted and braiked by the disposition, containing this power to burden at any time during life which includes also death-bed.
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Margaret Bryson being the only child procreate of the marriage betwixt Andrew Bryson and Elisabeth Elphinston, being infeft in an annualrent out of the lands of Craigton, effeiring to the principal sum of 7000 merks, did thereupon pursue a poinding of the ground against Mr Andrew Bryson her brother, who had right to the saids lands from John Johnston, to whom the said Andrew's eldest son had disponed the saids lands, being infeft therein by his father before the said Margaret was infeft in the annualrent foresaid. It was alleged for the defender, That he had a reduction on the pursuer's infeftment as being granted in lecto. To which it being replied, That the reduction could only be sustained at the instance of the heir; whereas the right of fee granted by Andrew Bryson to his eldest son, did only make him represent his father passive as successor titulo lucrativo, but gave him no active title to pursue this reduction ex capite lecti, nor none having right from him. 2do, The pursuer's infeftment depended upon a contract of marriage; and the said Andrew Bryson having burdened his fee of the said lands, disponed to his eldest son, with a power and liberty to affect the same at any time before his decease, the pursuer's infeftment could never be quarrelled ex capite lecti.——The Lords assoilzied from the reduction, and sustained the infeftment, notwithstanding that it was alleged, that that power to burden, at any time before his decease, behoved to be interpreted when he was in his liege poustie, and not in lecto ægritudinis, unless it had been so expressed.
Fol. Dic. v. 1. p. 215. Gosford, MS. No 64. p. 23.
*** The like was found in the case Douglas against Douglas, voce Adultery, No 6. p. 329.
