[1668] Mor 3291
Subject_1 DEATH-BED.
Subject_2 SECT X. What circumstances infer Death-bed.
Date: Patrick Dun
v.
Isobel and Elirabeth Duns, his Sisters
25 February 1668
Case No.No 78.
In a reduction on death-bed, the defender offered to prove, that though the defunct had broke his leg, and so could not go to kirk or market, he was notwithstanding in perfect health when he executed the deed challenged. This defence was repelled.
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Umquhile Dr Dun having provided 4000 merks to one of his daughters, and 10,000 merks to another, and entertainment during their minority, that their portion might go to the fore, bearing annualrent; did thereafter grant to Isobel another bond of 2000 merks; whereof Patrick his heir raises reduction, as being
done on death-bed, after the defunct had broke his leg, and the same was cut off, whereof he took a fever and died, and never went out to kirk or market:—The defenders answered, That they offered them to prove, that albert the defunct happened not to come out, yet he was in his liege poustie, and perfect health, and did all his affairs, which did much more evidence his health, than the stepping out to the market; 2dly, The bond in question being a provision to a daughter, it was a natural obligation, which the father might do on death-bed.—The pursuer answered, That the law allowed no other evidence to give capacity to dispone in liege poustie, but going to kirk and market; and if any equivalent were accepted, it would render the most ancient law dubious and elusory; as to the second, the defender having been portioned before, any addition on death-bed had not so much as the favour of a portion-natural. The Lords repelled the defences, and sustained the summons.
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