Death-bed was inferred by the defunct being held on horse-back by a person sitting behind him, when he went a journey.
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Umouhile John Lockhart did dispone his whole means and estate in trust to the Lord Lee, for the use and behoof of several persons related to him on the mother's side, leaving nothing to William Lockhart, his brother by the second marriage. There was a declarator pursued against the said William, for declaring, that the dispositions made by John his brother, were valid deeds done in liege poustie, and that after the first disposition he went from Edinburgh to Calder, and was there at sermon in the kirk; and after the second disposition renewed at Calder, because the first was vitiate by alterations, he did ride to the Lee. William not compearing, witnesses were adduced and proved the libel, and thereupon decreet followed. William raiseth reduction of this decreet, and of the two dispositions, upon this reason, that the decreet was in absence, and the allegeance of supportation was neither proponed for him, nor were the witnesses examined or deponed thereanent; but he offers to prove, that John had contracted the disease (whereof he died) before both dispositions, and that after he subscribed the first, he was carried in a sedan to Calder, and when he went on foot to and from the kirk, he was supported; after the second disposition, that when he rode from Calder to the Lee, his man rode behind him to hold him upon the horse; that he was visibly in a dying condition, and was helped to and from his horse, and that he never came out of the house of the Lee till he died, but was carried once in a chair to the garden, and not able to walk up and down his chamber without help, and that in a part of the way to the Lee he was tied with a cloath that he might not fall from the horse.
All which the Lords found proven, and therefore reduced both the dispositions and decreet, albeit a prior testament was produced, wherein most of the same provisions were left in a legacy, signed two years before his death. Where upon it was alleged, That the presumption of doing these things by weakness or importunity, were taken off; which was not respected, seeing his testament was ambulatory, and ineffectual as to heritable rights, so that he might have changed his mind between the testament and the dispositions; neither was it respected that most of his estate came by his mother's father.
