Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. VII.

Against what Deeds the Law of Death-bed Strikes.

Janet Cowie and Mr David Hardie, her Husband, for his Interest,
v.
William Brown of Seabegs, Janet Cowie, and Others

Date: 22 July 1707
Case No. No 44.

A person's moveables, notwithstanding of gratuitous rights thereof made on death-bed, found liable both to the payment of a debt due by him to his heir, and for the heir's relief of the defunct's other moveable debts, and these rights found reducible ex capite lecti, in so far as prejudicial to the heir qua talis, or as creditor.

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John Cowie of Bothkenner having granted, for love and favour, to William Brown of Seabegs, Janet Cowie, and others, respective, discharge and some assignations of some moveable debts due to him; Janet Cowie, as one of the five heirs portioners of the said John Cowie, her brother, and as creditor to him in 500 merks, raised reduction of the foresaid gratuitous deeds ex capite lecti, with a conclusion of declarator, That notwithstanding thereof, the granter's moveable goods and gear are liable to be affected, both for payment of the debt due by him to the pursuer, and for the pursuer's relief of the other moveable debts to which she might be obnoxious as heir.

Answered for the defenders, 1mo, The pursuer, as creditor, cannot be heard to reduce, except upon the act of Parliament 1621, about deeds in fraudem creditorum, which cannot take place here where the defunct was solvent; 2do, Neither can she reduce, as heir, the rights quarrelled; because they relate only to moveables, and none of them burdening or affecting the heritage, and the old statute in the Majesty forbids only the disponing of heritage without consent of the heir; which, by the rule of inclusio unius, &c. argues, that men are at liberty, even upon death-bed, to do what they please with their moveables, except children be wronged of their legitim, or a relict of her share, which is not the case.

Replied for the pursuer; The defunct could not, by any gratuitous deeds on death-bed, which are of a testamentary nature, prejudice the heir, or any of his own lawful creditors; for, 1mo, The moveables of the defunct ought to be burdened and affected with his moveable debt, and he could not dispose of his moveables, except in so far as they were free; it being a maxim in law, That bona non sunt nisi debitis deductis, and so decided, Lady Colvil contra Lord Colvil, voce Succession. The pursuer needs not recur to the act of Parliament 1621, she being founded in the common law, whereby legacies can only be of the defunct's free moveables, and if more be legated, they suffer a proportionable abatement. It is not a good defence against all gifts on death-bed, that debita excedunt bona, which evinceth that debts are not thereby to be prejudiced: So the Lords found, that a special legatar could not pursue the debtor, till the executor was called, lest the debts should exhaust even the special legacy, Forrester, contra Clerk, No 36. p. 2194.; 2do, The pursuer has right as heir to crave it may be declared, that no deed on death-bed can directly or indirectly burden or affect the heritage; and if the persons who have considerable moveable debts were allowed to exhaust their executry by gratuitous deeds, it were easy to evacuate the law of death-bed by exposing the heritage to be swallowed up by the moveable debts.

Duplied for the defender; The cited decisions are not to the purpose; for though legacies be affected with the burden of debts; deeds inter vivos, though granted on death-bed, are not; 2do, Though the heir is to be relieved by the executor of testamentary deeds, that relief is not to be extended to deeds inter vivos, though made on death-bed; for how can the executor's obligement to relieve the heir, which commenceth but after the defunct's decease, operate retro, to reduce an assignation or discharge granted by the defunct to third parties. True, bonds granted upon death-bed are reducible when they come to affect heritage; because thereby the law is directly eluded: But here the heir is left only under debts contracted by her predecessor in liege poustie, by the withdrawing some moveable subjects from her relief, which is a different case.

The Lords found the defunct's moveables, notwithstanding of the discharge and assignations on death-bed, liable both to the payment of the debt due by him to the pursuer, and for the pursuer's relief of other moveable debts, to which she might be obnoxious as heir; and found the foresaid deeds reducible ex capite lecti, in so far as the same prejudge the pursuer as heir or creditor.

Forbes, p. 187.