Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Mr Matthew M'Kell
v.
Sandilands and Others

1683. March.

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In a process for payment of a bond, at the instance of an assignee whose assignation was granted, without an onerous cause, by the cedent on his deathbed, and intimated before his decease;—it was alleged for the debtor, (with whom the cedent's nearest of kin and the commissaries concurred,) That the gratuitous assignation granted on deathbed, though it bears no cogitatio mortis, or instans periculum, must be reputed donatio mortis causa, and be confirmed; for, if such assignations on deathbed were sustained, without confirming, the bishop would be prejudged of the quot, and creditors would want the benefit of caution, in case the assignation were reducible upon the Act of Parliament 1621; whereas, if they be confirmed, the assignee confirmed executor would find caution, and other creditors would be allowed to compete with him. 2. If gratuitous deathbed assignations were allowed, dying persons would dispose of all their estate by assignations. 3. It was found, in the case of Rickart against Rickart, that money delivered in specie, in lecto, must be confirmed; and, for the same reason, sums assigned on deathbed are liable to confirmation. Answered for the pursuer, This assignation being per actum inter vivos, and not in a testamentary way, nor bearing mortis causa, needs no confirmation; and what is done in sickness, not making mention of death in general, or in special, are deeds morientis, not mortis causa, and are not to be regulated as testamentary-deeds, or donations mortis causa, which are null if the party or creditor predecease before the granter, and liable to revocation: for the time of sickness is æque habile as liege poustie, to grant deeds not prejudicial to relicts or children; and it were a great charge to the lieges to confirm particular assignations, and rights made in lecto, wherein dole is not presumed, as in dispositions omnium bonorum. The Lords found there was no necessity of confirmation in the case. And here the defunct had no relict or children, who must be prejudged.

Page 124, No. 452.