In what cases a Private Deed not probative against the Heir.
Thallane v. Archibald Orrock
Date: 17 June 1673 Case No. No 474.
A man having, in a testament executed on death-bed, acknowledged a debt, the testament, supported by witnesses, relative to correspondent facts, was found probative against the heir.
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In a pursuit at Thallane's instance, as assignee by John Orrock to the sum of 100 merks, against the heir of Archibald Orrock, which debt was instructed by an article of Archibald Orrock's testament testamentary, wherein he acknowledged himself debtor in so much to the pursuer's cedent; it was alleged for the defender, That the said testament could not constitute any debt against him, who was heir, the same being made in lecto, at which time he could not burden the heir. It was replied, That the defunct having given up the debt as due to him before his sickness, in fortification thereof it was offered to be proved, that he had intromitted with as much money which belonged to John Orrock, his brother's son, who was the pursuer's cedent, and had paid a year's annualrent thereof, which was probable by witnesses, the principal sum being within L. 100. The Lords did sustain the summons, and repelled the defence, in respect of the reply; so that the debt being so constituted and proved as said is, the heir was liable as well as the executor, reserving him his action of relief; and so found, that a declaration on death-bed for a small sum, which might be proved by witnesses if the defunct had been living, being so fortified, might burden an heir, albeit only proved by witnesses.
Fol. Dic. v. 2. p. 255. Gosford, MS. No 592. p. 338.
