Reserved Faculties whether reducible upon Death-bed.
Brown v. Congletoun
1685.
December. Case No. No 65.
A person having tailzied his estate to a stranger, with this provision, that the disponee should be bound to pay all his debts contracted, or to be contracted, and that should be due at his decease, but without the clause etiam in articulo mortis; and having thereafter granted a bond upon death-bed; the Lords found, that the disponee was burdened with the said quality in the disposition, and therefore that he could not reduce the bond as granted on death-bed.
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George Cockburn of Pilton as principal, and Sir Robert Hepburn of Keith as cautioner, having granted bond to Thomas Brown, stationer in Edinburgh, for 2000 merks; and he having pursued Robert Congletoun, for payment, as he who had accepted of a disposition from Sir Robert of his estate, with the burden of all debts contracted by Sir Robert in his lifetime, and due at his decease, which he obliged the said Robert Congletoun to pay, as he would eschew the wrath of God.—Alleged for the defender; That the bond was null, as being granted by Sir Robert when he was upon death-bed; and so cannot oblige the defender, who is heir to him, at least universal successor, by the foresaid disposition; and upon that ground had raised reduction, which he repeated.—Answered; That the defender could not quarrel the bond as being granted upon death-bed; because he had accepted of a disposition, with the burden of all his debts contracted in his lifetime, and due at his decease; which must comprehend debts contracted upon death-bed, as well as in liege poustie, as was decided 22d June 1670, Douglas of Lumsden contra Douglas, No 6. p. 329. where it was not found relevant to reduce a bond granted on death-bed, by a party who had disponed his estate, reserving a power to himself to burden it in any time during his life, though it did not bear etiam in articulo mortis; much more in this case, seeing the disposition did not only bear the foresaid reservation, but an imprecation obliging the defender to pay the debt, as he would eschew the wrath of God, which did evince Sir Robert's enixa voluntas, that all his debts contracted, or to be contracted by him, should be paid.—Replied; That these words in the disposition, that the defender, by the acceptation thereof, should be obliged to pay all debts contracted by the said Sir Robert in his life time, or due at his decease, can only be understood in terminis juris, as to such debts that Sir Robert contracted in his liege poustie, when he was capable to contract debt, and not of debts contracted on death-bed; especially seeing it does not bear a reservation to contract debts etiam in articulo mortis.——The Lords found, That Congletoun, as heir of tailzie, is burdened by the quality of the disposition, made by Sir Robert Hepburn to him, for payment of debts contracted, or to be contracted by Sir Robert, at any time in his life time; and that Congletoun had not the benefit of reduction of the foresaid bond, as being contracted on death-bed.
Fol. Dic. v. 1. p. 215. Sir P. Home, MS. v. 2. No 749.*** Harcarse reports the same case:
In a pursuit at the instance of Robert Brown, against young Congletoun, as heir of tailzie to Sir Robert Hepburn of Keith, for payment of 2000 merks Sir Robert stood cautioner for Pilton;
Alleged for the defender; The bond was signed by Sir Robert on death-bed, when he could not prejudge his heir.
Answered; The tailzie contains a quality, that the defender should satisfy all Sir Robert's debts contracted, or to be contracted at any time of his life.
Replied; Any time in a man's life imports only liege poustie, as was found in Humbie's case, No 1. p. 3177.; and had Sir Robert intended the clause to be more comprehensive, the words etiam in articulo mortis would have been adjected.
Duplied; Though rights in favours of apparent heirs, with a clause to burden at any time in the disponer's life, would not be extended to give him such a faculty on death-bed; yet a greater latitude must be allowed here to the granter of a new tailzie in favour of a remote relation; 2do, Such was the defunct's enixa voluntas to have his debt paid, that he charged the defender to satisfy the same, under the pain of God's curse and displeasure.
Triplied; That imprecation could extend no further than the power reserved, viz. to satisfy deeds in liege poustie.
The Lords having considered the circumstances in this case, they decerned the defender to pay the debt.
