Implied Conditions in Assignations omnium bonorum.
Doctor Irvine v. John Skeen of Halyards
Date: 7 March 1707 Case No. No 19.
A party granted an assignation omnium bonorum that should belong to her at the time of her death, reserving her liferent and power to alter etiam in articulo mortis. The Lords found this was a donatio mortis causa, and therefore void by the cedent surviving the assignee; and found, that the subject belonged to the cedent's executors, though the deed was never revoked by her.
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Elizabeth Ker, the pretended second wife of the deceased Doctor Christopher Irvine Doctor of physic, having disponed to John Irvine her son procreated betwixt the Doctor and her, all goods and gear belonging to her the time of her decease, reserving her own liferent, with a faculty to dispone otherways etiam in articulo mortis, and dispensing with the not delivery; this general disposition he transferred to Doctor Christopher Irvine his fathers eldest son; who, having procured a gift of John's bastardy, and ultimus hæres, raised a process of declarator of bastardy and payment, against Elizabeth Ker's debtors. Compearance was made for John Skeen of Halyards, her executor qua nearest of kin, who claimed to be preferred to the said debts, in respect the assignation granted by Elizabeth Ker to her son was donatio mortis causa, and void by her surviving the donatar, and consequently the goods and gear disponed belonged to her executor.
Alleged for Doctor Irvine; That Elizabeth Ker's assignation to her son could not be donatio mortis causa, seeing it was not conceived after a testamentary nature, but as a deed inter vivos; and donatio mortis causa is never presumed, unless it clearly appear from the testamentary conception of the writ, or be granted in contemplation of immediate death, or some eminent danger feared by the disponer.
Answered for Halyards; The disposition in question carries the plainest characters of donatio mortis causa, as described, l. 1. & l. 27. D. De mortis causa donationibus; for here Elizabeth Ker preferred herself to the assignee, and him to her representative. And as an irrevocable donatio mortis causa is reputed donatio inter vivos, so e contrario, a revocable donatio omnium bonorum belonging to the disponer the time of her decease, must be looked on as donatio mortis causa. Again, in the general opinion of lawyers, when a donation is expressly to take effect at the disponer's death, in dubio mortis causa præsumitur; because, nemo præsumitur velle rem suam jactare.
The Lords found the assignation granted by Elizabeth Ker to John Irvine her son, being omnium bonorum which should belong to her the time of her decease, was donatio mortis causa, and so void by the cedent's surviving the assignee. And the subject was found to belong to the cedent's executor, though the faculty to alter was never exerced by the defunct.
Thereafter it was alleged for Halyards; That the foresaid assignation granted by Elizabeth Ker to John Irvine her son, is null by the common law, Authent. L. 6. Cod. De incest. nupitis; and our law, July 20. 1622, Weir of Blackwood contra Durham, voce Pactum Illicitum; and act 119. Parl. 12. James VI. as being granted by an adulteress to her adulterous child. And the adultery is proved by the declarator of bastardy in process, obtained by the Doctor before the Commissaries of Edinburgh, finding the marriage betwixt the deceased Doctor Irvine his father and Elizabeth Ker to have been unlawful, and the children spurious and adulterous, and incapable to succeed to their parents.
Answered for Doctor Irvine; Restrictions in the common law of the natural faculty of alienating and disposing of property take little place with us, who walk therein by our own statutes and customs. Besides, the Authentic L. 6. speaks of children born in incest. Nor does the cited decision meet the case, for there the Lords refused to sustain a bond granted to the mother of an adulterous child, because given as a præmium adulterii et turpitudinis, which cannot be pretended here where the mother received no premium from the adulterer, either to herself or her son, but disponed after the adulterer's death her own effects, in which there could be no turpitudo, either ex parte dantis, or accipientis. And the act of Parliament 119. annuls only dispositions made by a woman who (divorced from her lawful husband for her own fault of adultery) marries the adulterer, or keeps company with him at bed and board; which cannot be said of Elizabeth Ker, who was never married. Besides, the said act prohibits only the alienation of lands, heritages, tacks, rooms, or possessions, which can never be extended to moveable sums, the present subject of debate.
The Lords repelled this nullity. See Pactum Illicitum.
