A person was bound, in his contract of marriage, to provide the conquest to the heirs of the marriage. This found to hinder him from disposing of his moveable estate on death-bed.
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The deceased Robert Neilson of Barncailly, in his contract of marriage with Elisabeth Stewart, having provided the conquest to the heirs of the marriage, granted a legacy upon death-bed of 500 merks to Robert Maxwell.
Death-bed being objected, it was answered for the legatar, The law of death-bed extends not to moveable subjects, which any proprietor may freely dispose of upon death-bed, unless in so far as he is restricted by the wife and children; the law has thought it proper, only to tie up people absolutely as to their heritable subjects, that they cannot alienate these upon death-bed, leaving moveables more free, as generally of less consequence: And the law of death-bed dose not consider the heir simply, if he be prejudged, but if he be prejudged in an heritable subject; and therefore the moveables will be liable for this legacy, equally as if they were not provided to the heirs of the marriage; or being provided to the heirs of the marriage, as if the legacy had been granted in liege poustie, by way of disposition inter vivos. And thus it was determined, Mitchell contra Children of Littlejohn, 16th June 1676. No 11. p. 3190.
Replied for Barncailly, heir of the marriage, That the law of death-bed takes place against every deed done upon death-bed, to the prejudice of the heir; and that indifferently, whoever be the heir, whether of line, tailzie, or provision; and whatever be the deed, whether an alienation of subjects in themselves heritable or moveable.
‘The Lords found, That the clause of conquest in the contract of marriage, did hinder the father to dispose on his moveable estate upon death-bed.’
Fol. Dic. v. 1. p. 212. Rem. Dec. v. 1. No 32. p. 64.
