A woman made a disposition to her nephew, with power to alter in case of absolute and urgent necessity. She afterwards made a disposition in favour of another person, on a narrative that her nephew had disobliged her, though it was not alleged that she was in any necessity. The Lords reduced the first disposition.
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Helen Mathieson being proprietor of some tenements and acres about Stirling, and having no children alive, she makes a disposition of her whole estate, both heritable and moveable, to James Millar writer in Edinburgh, her sister's son, in 1688, with a power to alter in case of urgent and absolute necessity. Some months before her death, in 1690, she was prevailed with to make a second disposition to one Renny, another nephew of her's, on a narrative that Millar had disobliged her by debauching her servant woman, and had straitened her in her living and credit, by inhibiting and arresting her effects; therefore she revoked his disposition, and gave a new one to David Millar, his brother, and Renny, betwixt them. Of this disposition James raised a reduction on these reasons, that it was elicited from the woman when old and infirm, and given a non habente potestatem, she having no power to alter, except in the case of extreme poverty allenarly; and he offered to prove she was so far from that condition, that she lived plentifully to her dying day; and the narrative of his arresting and inhibiting could not be the cause of it; for it is posterior to the second disposition some days, and was done with no other design but to prevent her being cheated and imposed on, and so proceeds on a false narrative. And the Lords having allowed a conjunct probation as to the points of fact alleged hinc inde, and the same being advised, it was alleged against the first right to Millar, that though it was in the terms of a disposition, yet it was really no more upon the matter but a destination of succession, a donatio mortis causa, and a tailzie without any onerous cause, but mere love and favour; and it is known by the principles of our law such deeds are ambulatory and revocable; as Sir Thomas Hope in his Minor Practics, c. 26. observes, that bonds of tailzie sine ulla causa but affection, are alterable and revocable at pleasure. It is true, our decisions have deborded from this doctrine in the case of mutual tailzies, or where there is causa onerosa expressed, or where the posterior gratuitous deed can be quarrelled on the act of Parliament 1621; and the Roman law repudiates all pacta de hæreditate viventis. Now that Millar's disposition is such, appears from its narrative, that she thought him fittest to succeed her; by which it is evident she designed only to name a successor; and l. 34. D. de reg. jur. says semper in stipulationibus et ceteris contractibus id sequimur quod actum est; 2do, All these lucrative deeds are lost by ingratitude and misbehaviour; and his inhibiting and arresting to prevent their cheating her can be neither cloak nor excuse, for he should have gone to herself, and convinced her there was no necessity to alter, and not by the rugged way of legal diligence; and though it be after the disposition, yet he had threatened her long before. And esto he has proven that she lived plentifully to the last, yet no thanks to him, for he did what in him lay to bring her to indigency, and law considers the attempt, whether it succeed or not; and it discovered an ungrate mind against his benefactor to bring her to straits and disrepute. And the tit. C. de revoc. donat. gives us many cases beside ingratitude, as supervenientia liberorum, &c.; 3tio, The restriction of her faculty to alter only in the case of absolute necessity, foisted in by a cunning agent, can never palliate or support his disposition. What if this trial had been taken in her own lifetime, behoved she to have led a long and dubious probation of her mean circumstances before she could alter? nullo modo: Law, justice, and equity left that in her own discretionary power; and her declaration was sufficient to set her at liberty from these ensnaring fetters.—Answered, Millar's disposition has nothing of the nature of a donatio mortis causa, nor a testamentary deed, but is a plain actus inter vivos, proceeding on the impulsive cause of his many good services done her; and she had put it out of her power to alter, save only in the case of absolute necessity, which never existed; and the Lords in 1678, in the case of Mary Mauld with Carnegie of Phineven*, though she herself raised a reduction of her deed, containing that quality, yet the Lords refused to reduce Phineven's disposition, unless
* Examine General List of Names.
she made her necessity appear otherwise, than by her own assertion. And as to the lawless excessive liberties taken in traducing his good name, they are neither true, proven, nor pertinent; for quod hoc ad edictum prætoris? And their inserting his debauchery is none of her's, for cogitatio in mente retenta nihil operatur, and the insinuations are false; and calumniare audacter aliquid adhœrebit, but offered to so great and noble a judicatory, contrary to all rules of decency, merits a reprimand; for respect of persons can never change the principles of right or wrong. And upon such empty pretences to reduce my disposition, completed by infeftment, were beyond all example hard; for by the clause of warrandice in my right I am so far a creditor to the disponer, that she could not thereafter, by any gratuitous deed, dispone the same in favour of another, in prejudice of my prior right, as has been often decided, and particularly Alexander contra Lundies, No 64. p. 940. and Hays contra Hay, No 66. p. 942.; and she was upon death-bed when she made the second right; and my using diligence can never prejudge me, for nemo videtur dolo facere qui jure suo utitur.—Answered, As to the death-bed, no such thing proven; and esto it were, none can quarrel it but the heir, which you are not, David being the elder brother.——The Lords, by plurality, found the first disposition revocable, and revoked by the second; and therefore reducing it, preferred the second.
Fol. Dic. v. 1. p. 290. Fountainhall, v. 2 p. 749.
