Bonds granted on death-bed, although they do affect only the dead's part, yet are preferable to legacies left in the ordinary way; for the defunct is in legitima potestate as to affecting his part, and granting of bonds to that effect.
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Umquile Thomas Littlejohn, by his first contract of marriage, provided his whole conquest, during the marriage, to the bairns of the marriage; shortly before his death, he granted a bond of provision to the bairns in satisfaction of their portions natural, and what they could crave of him; and having married Catherine Mitchel, he provided her, by her contract, to 720 merks yearly; and, by a posterior bond, he obliged himself, his heirs, executors, and assignees, to pay her 600 merks yearly in case the marriage dissolved within year and day. Which the Lords sustained, notwithstanding of the prior clause of conquest, in so far as might extend to the third of the moveables. The said Thomas did also grant a legacy to Andrew Littlejohn, his brother, for several gratitudes, containing an obligement upon his heirs, executors, and assignees, to pay the same, with condition that he accepted the tutory of his bairns. The account being remitted to an auditor, he did report, that the bairns provision exceeded the two parts, and therefore they craved to be preferred to the relict and the legatar; because, albeit their bond was due on death-bed, yet there is no law nor custom restricting the power of persons on death-bed as to dead's part, but they may grant legacies or bonds as inter vivos, betwixt which there is this difference, that those who get bonds on death-bed are creditors; and albeit their bonds be not effectual against the heir's bairns, or wife's part, against whom neither the obligements nor declarations of defuncts are valid, yet they are fully valid against the executor quoad dead's part, and so they are not legatars but creditors; so that the provision to the wife and bairns being not by way of legacy, but by way of credit and bond inter vivos, they are both preferable to the legacy, although it proceed upon rational motives, being no civil debt; and though it bear an obligement upon the heirs and executors to pay the legacy.
The Lords found, that a bond granted by a defunct on death-bed, not by way of legacy, but obliging heirs and executors, was preferable to his legacy.
Fol. Dic. v. 1. p. 213. Stair, v. 2. p. 479.*** Dirleton reports the same case:
The Lords found, That bonds granted on death-bed, albeit they are legacies, as to that effect, that they affect only the dead's part, yet they are preferable to other legacies left in the ordinary ways of legacies; and that the defunct was in legitima potestate as to the affecting of his part, and granting of bonds to that effect.
Reporter, Justice-Clerk.Clerk, Gibson.
Dirleton, No 402. p. 198.
