Whether a Death-bed Deed will infer recognition against the Heir. - Blank filled up on Death-bed. - Nomination of Tutors.
Birnies v. The Laird of Polmaise and Browns
Date: 22 June 1678 Case No. No 58.
A disposition executed in liege poustie, but blank as to the disponer's name, was found reducible, as upon death-bed, as the disponee's name was filled up upon death-bed.
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Umquhile James Short having married Polmaise's daughter without his consent, or tocher, or contract of marriage; during the marriage, James did provide his wife to the liferent of a tenement in Stirling, and some acres thereabout, and to the stock of 10,000 merks due by Tillibarden, with the burden of his mother's liferent of the tenement and sum; but thereafter he revoked this disposition, as a donation betwixt man and wife stante matrimonio, and disponed the same to his mother, who transferred the right thereof to her oyes Sir Andrew Birnie's children by James Short's sister; whereupon they pursue reduction against Polmaise, as having now right by progress to the 10,000 merks, as being a donation betwixt husband and wife revocable, and revoked. The defender having alleged that there being no contract of marriage, this provision was in place thereof, and therefore was not revocable, especially seeing that it was but a rational provision by a burgess to a gentlewoman's daughter, who had induced him to marry her without her father's consent;—the pursuer answered, That the law had sufficiently provided wives by a terce and third, and any further provision after the marriage was a donation revocable, and so revoked. The Lords, before answer, did ordain either party to adduce probation what was the estate of James Short the time of this provision; and by the probation it appeared, that he had a tenement worth 10,000 merks, burdened with the mother's liferent, and this 10,000 merks, so likewise burdened; that his mother was a woman near 70 years, and died shortly after; and that the acres about Stirling were worth two chalders of victual un-liferented by his mother, but that his wife liferented the whole, and that he had 11,000 merks of debt, and therefore found the provision of the fee of 10,000 merkes to be exorbitant, and to be revoked as a donation. In the same libel, there was a reduction against James Short his nieces, by another sister called Brown, of the disposition of a tenement in Stirling, failing heirs of his body, on this reason, that albeit it was subscribed before his sickness, yet the persons names were left blank, and were not filled up till he took the sickness, whereof he died; so that on death-bed he could not prejudge his heirs; and it being alleged, that before his sickness he had not only subscribed the writ, but had delivered it to the writer, to the use of his nieces, and had given him direction to fill up their names; and that albeit the writer had not done it till his sickness, yet the subscription and warrant before, to fill up the blank, was sufficient to fill up the heir;—it was answered, That this warrant at most was bat a mandate, which ceased so soon as the constituent was become incapable to dispone.
The Lords having ordained the writer and witnesses insert to be examined, the writer, out of whose hand the writ was recovered, did depone, that it was subscribed before the defunct's sickness, but a blank left for the names, and that the defunct, after his sickness, had ordered his nieces, the Browns', names to be insert in the blanks, without any mention that before his sickness he had given warrant to fill up their names, or delivered the writ to their behoof. Whereupon the Lords reduced the right, in so far as it might concern the Browns; but the question came not to be determined in case the warrant had been given before sickness to fill up the names, and they had only been filled up in lecto.
