Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

John Dowglas of Lumsdean
v.
Archibald Dowglas

Date: 22 June 1670

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Umquhile Dowglas of Lumsdean dispones his estate to Archibald Dowglas, his son, reserving power to himself, at any time during his life, to burden the estate with four thousand merks: and did thereafter grant a bond of four thousand merks in favours of Elizabeth Lyel, his wife, in liferent, and of John Dowglas, their son, in fee; who thereupon pursues the said Archibald for payment. The defender alleged Absolvitor; because the reservation in the disposition, being in favours of the defunct, can only be understood of a legal power, to burden according to law: ita est this bond of provision was granted by the defunct when he was not in legitima potestate, but on death-bed: especially seeing the reservation does not bear a power to dispone at any time in his life, etiam in articulo mortis, which is the clause ordinarily adjected, when the meaning of parties is, that the power should extend to deeds on death-bed: And thereupon the pursuer hath intented reduction, which he repeats by way of defence. The pursuer answered, That the defence is no ways relevant; because the privilege excluding deeds on death-bed is introduced by law in favours of heirs only, that the defunct may not prejudge his heir on death-bed; but if a party dispone, he may qualify his disposition as he pleases, and he who hath so accepted the disposition cannot quarrel the same; and albeit these words etiam in articulo mortis are sometimes adjected propter majorem cautelam, yet the words, “at any time during his life,” are sufficient to import either in his health or in his sickness. The defender answered, That whatsoever might be alleged, if the disposition had been to a stranger, of that interpretation of the words, yet this disposition being granted to the disponer's own eldest son and apparent heir, it must be understood only of such deeds as might be done against an heir; and here the creditors do also concur, who, in place of the heir, might pursue the reduction, and against whom the personal objection of acceptance cannot be alleged. The pursuer answered, That the defender was not apparent heir; because it is notourly known that his father begot him in adultery, upon the wife of Sir Alexander Hume, for which adultery she was divorced from her husband; and albeit he did cohabit with her thereafter as his wife, that cannot infer, as in other cases, that she was his wife, because marriage cannot consist betwixt the adulterer and the adulteress, and all their issue are disabled to succeed; so that the pursuer of the reduction is the eldest son and apparent heir, in whose favour the provision is made. 2dly. Albeit the defender were, or could be apparent heir, yet here, having accepted a disposition of the whole estate, burdened with this provision, his acceptance excludes him, who is thereby bound, and cannot pretend to any privilege of an heir; for, albeit, re Integra, he might renounce the disposition, and return to bruik as heir, now he cannot, having bruiked by the disposition: and for the creditors' concourse, they are not pursuers, and they may insist in any action competent to them by law, but cannot oppose this personal obligement, whereby the defender, by the acceptance of the disposition in these terms, is become obliged to pay the pursuer the sum in the reservation. The Lords repelled the defence, and found that the reservation, in the terms as it stood, did extend to burdening of the estate at any time the disponer pleased and was in capacity of sense and reason, though on deathbed; and found no necessity to dive in the questions concerning the defender's procreation and capacity of succession, seeing he had accepted and bruiked by the disposition so qualified: and did not admit the creditors to oppose this conclusion, but reserved their rights as accords.

Vol. I, Page 684.