A power to burden an heir with legacies to pious uses, or with an additional jointure to a wife, found not available against the heir, if executed on death bed.
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Dr Yeoman, by his contract of marriage, provides “L. 10,000 in conjunct fee to his future spouse, and to the heirs of the marriage, and L. 20,000 further to the heirs of the marriage, reserving his own liferent, and a power to burden his heir with legacies to pious uses, or with an additional jointure to his wife.” By his testament he leaves a legacy of the annualrent of 3000 merks during her life, over and above the L. 10,000 provided to her by her contract. She and her second husband pursue her son, both as heir and executor for this annualrent, who alleged, That as executor, the dead's part was exhausted with legacies, which therefore behoved to suffer a proportional abatement; and as heir he is not liable, because no deed in testament, or on death-bed, can burden the heir; and albeit it be true that any person who dispones or provides any heritable right, may qualify it with any provision he pleases, and so with a power to burden it in lecto, which that party cannot quarrel, as being a condition with which his right is given and accepted; but otherwise no person can, by any clause in liege poustie, reserving a power to burden his heir on death-bed, do it effectually; for then that excellent statute should be generally evacuated; and in this case the defunct hath not exercised the faculty, for he hath not burdened his heir, nor constituted a liferent, as inter vivos, but only granted a legacy, without mention of the power reserved to him in the contract; and though he had, yet if his son please not to be heir of provision, or to enjoy any right as heir of the marriage by the contract, but as heir of line by the law, no deed on death-bed can burden him, seeing he accepts not any disposition or provision from his father, but only the benefit of law, as any other heir might do, though there had been no bairns of the marriage, who could never be burdened with this reservation.—It was answered, That this legacy being accessory to the contract, by which the wife renounced her third and terce for L. 10,000, and what her husband would provide her to on death-bed, she is in effect a creditor, or at least a preferable legatar, not to suffer abatement with the rest; 2do, The defender being both heir and executor, though the faculty be not formally exercised, yet materially it is; and there was no reason that the son should be suffered to enter heir of line, to avoid his father's provisions that would reach him as heir of the marriage.
The Lords found, That this legacy could only affect the defender as executor, and with proportional abatement with the other legatars, but the defender could not condescend upon a terce or third renounced by her contract, which was better than the L. 10,000 contained therein, without this addition.
Stair, v. 2. p. 423.*** Gosford reports the same case:
In a pursuit for an additional jointure, at the said relict's instance, for the yearly annualrents of 3000 merks, added to her jointure of L. 10,000, founded upon her contract of marriage, and his declaration by a legacy relating to his power to burden in articulo mortis, it was answered, That the reversion was not obligatory, but voluntary, and so being declared on death-bed, was only a legacy, and ought to bear a defalcation, the inventory not being able to pay all debts and legacies; and the contract gave no right, but was only a faculty reserved, which was not binding, neither could it bind the heir unless he were heir of provision, but not as heir of line.——The Lords found she had only right as a legatar, and so liable to deduction; and that he could not be liable as heir, unless he were heir of provision, but not as heir general; which was hard, seeing the provision made to the heir of the marriage was affected; and if this were granted, all heirs of provision of the marriage would elude provisions made to second sons or daughters by serving heir general, and relicts of creditors might be defrauded, seeing the heir general might be free, and yet enjoy the provision.
