Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Date: 16 January 1672
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A woman in Aberdeen being at the point of death dispones some tenements of land and other heritage to. She, recovering of her sickness, raises reduction of the said disposition upon thir heads; as being omnium bonorum, sine omni causa onerosa done in lecto ægritudinis; and so as it might have been questioned by her heir, multo magis may it be done by herself, since the heir can have no greater power than the defunct had; that at most it was donatio mortis causa, which being in case of death, that not existing the donation falls; magis enim vult se habere quam eum cui donat, et magis eum cui donat quam hæredem suum; that it was donatio inofficiosa, the questioning whereof, though it was competent only to the children and other nearest of kin to the donatar, and that not for the whole, but only in quantum it was immoderate, and absorbed their legitim portions, yet a fortiori it seems most proper to the parties' self to reduce their gift to a mediocrity; that the donatarii were ungrate, in so far as they refused to repone her to her own place upon her reconvalescence; and so of the common law she might annul and revoke her gift, &c.
To all which it was answered, That this action was a novelty in our law; that this age, as barren of all charity and gratuitous deeds, knows no donations, and therefore allowed no revocation of deeds once consummated; that it was not in lecto, since she did not die of that sickness; though the heir will be reponed against a deed done by his predecessor in lecto, yet it was never so much as attempted by the party's self; that she could not pretend to the benefit of minority a paritate rationis, seeing privilegia are stricta juris and cannot be extended de casu in casum, &c.
This was reasoned. But how far a donation may be revoked by the granter either ob ingratitudinem, injurias ei a donatario factas, supervenientiam liberorum, or the like, (for unless the granter do it his heirs could not do it,) by our law I cannot determine: nor yet if quærela inofficiosa would with us be sustained if intended against a donation by children, or the nearest of kin, in so far as it defrauds them of their legitim or agnate's part.
