An universal legacy found not to derogate from prior assignations on deathbed.
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John Aikman pursues the successors of David Boyd, who was his tutor, to compt, and charges them with the sums contained in an assignation granted by his father to the pursuer, and also for the equal half of the defunct's other goods and sums belonging to the pursuer, as one of the two executors and universal legatars by his father's testament. The defenders alleged, That the pursuer had no right to the sums assigned, because the defunct granted two assignations, one to the pursuer, and another to his daughter, and both were on deathbed, and so were in effect but legacies; and the defunct, by his testament having named his son and daughter his executors and universal legatars, without reservation of the prior assignations, the last in testaments and legacies excludes all former. 2do, These assignations bear expressly clauses, “Reserving to the defunct to uplift the sums and dispose thereof at his pleasure;” so that thereafter having made an universal legacy, which is a disposal of all his moveable rights, the assignations granted by him with that reservation are thereby void. It was answered, That an universal legacy, without any particular goods or sums given upon testament, or any mention of the sums formerly assigned, can only be extended to the moveables over and above the two assignations, which assignations are deeds inter vivos, although being done on deathbed, they cannot prejudge the heir, the relict's-part or bairn's-part, and in so far are accounted as legacies affecting dead's part, yet they are not ambulatory as legacies at the defunct's pleasure; but if they had been delivered, though on deathbed, he could not recall them, and they would be preferable to any legacy; but in respect of the reservation or not delivery, the defunct might have otherways disposed thereof, but he hath not done it by his universal legacy, it being merely general, and having moveables besides both assignations.
The Lords found the assignations effectual and not derogate from by the universal legacy, seeing there were moveable goods and sums besides both assignations.
Fol. Dic. v. 2. p. 134. Stair, v. 2. p. 684.
*** Fountainhall's report of this case is No 21. p. 3201. voce Deathbed.
