Whether competent to children born post bæreditatem delatam?
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A mother having taken a bond bearing annualrent, and an obligement to infeft, to herself in liferent, and to her second son in fee, and the heirs of his body; which failing, to such of his brothers and sisters, and their children, as she should name in his lifetime; he died without children, after he had made a nomination on death-bed. The eldest brother, who was debtor in the bond, raised reduction of the nomination ex capite lecti, as done to the prejudice of him as heir of conquest, at least as one of the heirs substitute in the bond.
Alleged for the defender; That the clause to infeft could not make the bond be repute conquest, no infeftment having followed; 2do, The act of Parliament anent the disposing in prejudice of heirs, ought to be understood of heirs general, not of heirs substitute, who might be otherwise strangers.
The Lords found, That a person on death-bed could not prejudge heirs substitute more than other heirs ; and found, that the pursuer was one of the substitutes, and that the nomination on death-bed was invalid; and that therefore the whole brothers and sisters, and their children born, when hæreditas was delata, came in as substitute, and per capita; but that those born post hæreditatem delatam by the death of George the creditor, were not to be reputed substitutes. But this last point was but overly reasoned. It was much debated that the brothers, &c. were not called substitutes in the bond, but only the creditor was by his faculty to determine the substitutes; and so the brothers not nominate could not be looked on as heirs, and consequently could not quarrel ex capite lecti.
