A declaration under the hands of a defunct, that a disposition which he had formerly executed, containing a power to alter, was to be null, found effectual without delivery.
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James M'Bride having adjudged a tenement in Edinburgh from the heirs of Mr. Andrew Bryson, pursues a reduction of a disposition by the said Mr. Andrew to Andrew Bryson his cousin-german, on this reason, that the disposition “reserves a power to the Bailie at any time in his life, etiam in articulo mortis, to dispone this tenement, or to alienate or wadset the same;” and long thereafter there is a declaration signed by the said Mr. Andrew, bearing, a relation of the said reservation, and by virtue thereof, declaring “the disposition to be null and void, and ordaining his heirs of line to succeed as God and Nature hath ordained.” The defender alleged that the reason is not relevant, because the declaration is not conform to the power reserved, being only “to alienate or wadset;” and if need be, it is offered to be proved, that after that declaration he continued in his first resolution, and did express the same; neither was this declaration ever delivered, but is suspect, and if true, was lying by the defunct. It was answered, That albeit such clauses in onerous contracts are strictly to be observed, yet this is a gratuitous disposition, and conditional, “failing heirs of his own body,” and bearing “a power to alter on death-bed,” so is of a testamentary nature, and therefore most favourable and amply to be extended according to the true intent, which is a power to alter; for the constitution of an annual-rent, or burdening with money, would be effectual, albeit not in the specific terms; and the words, “ordaining the heirs of line to succeed,” is a dispositive word; but however, any alteration in whatever terms expressed, is sufficient.
The Lords found the power reserved, validly executed by the declaration produced, and therefore reduced the disposition, and found the declaration effectual, though not delivered, seeing the power to alter in articulo mortis, and in favours of the heirs of line, did necessarily import that there was no necessity to deliver the writ, making the alteration in the disponer's life.
