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The Lords found, that a bond, being granted on death-bed, with consent of his apparent heir for his interest, bearing an obligement to pay a sum of money, is to be considered, not as a legacy, but as a bond inter vivos; seeing, by the common law, all persons are in legitima potestate as to the granting of bonds; and our custom, whereby persons on death-bed are not in in liege poustie, is qualified with an exception, viz. unless the heir consent, in whose favours the same is introduced.
Reporter, Castlehill.
Dirleton, No 449. p. 219.*** Gosford reports this case:
In a pursuit at the said Janet's instance, and her husband, against Mr John Tait, as representing his father nominibus passivis, for payment of the sum of 500 merks contained in a bond, wherein the said Mr John Tait, his apparent heir, did consent, it was alleged, that the bond could not bind him as heir, because it was granted by the father when he was upon death-bed, and died the next day after; and the defender being left his executor and universal legatar at that time, he could only be liable upon that title, in case there were free goods after payment of his full debts, as to which he was content to count; and in case the inventory were not exhausted, to be liable; so that the bond being but donatio mortis causa, or of the nature of a legacy, albeit he consented it could not bind him, that being only sustained where there was a contract inter vivos, especially the pursuer and all the rest of the bairns being sufficiently provided. It was replied, That the apparent heir's consenting to his father's; bond must be liable as heir, if he represent him nominibus passivis, and the creditor in the bond is not obliged to discuss the executor.—The Lords having considered the bond, and finding that the bond was as apparent heir, and not as executor nominate, or universal legatar, they repelled the defence, and sustained the consent, albeit the bond was granted upon death-bed.
