Alexander Ragg Merchant in Aberdeen, v. George Forbes and Alexander Douglas Merchants there
Date: 28 January 1725 Case No. No 94.
The Lords found the alternative of having gone either to kirk or market relevant to support a disposition challenged on the head of death-bed.
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William Ragg (after he had contracted the sickness of which he died) made a disposition of his heritage and heritable effects to the defenders, his brother-in-law and nephew, which contained a full power to the disponer to revoke, alter, and innovate at his pleasure, or to burden the right with what sums of money he should think fit, without consent of the disponees. Thereafter, and within a few days of his death, he granted two several rights of the same tenor, one in favours of Alexander Forbes, and the other of Margaret Ragg, by which he bound and obliged him, his heirs and successors in his lands and heritages, to make payment to them of L. 2000 Scots equally between them; and there was a clause adjected, whereby it was provided and declared, that in case his heritage should not amount to the sum of L. 2000 Scots, that then Alexander Ragg and Marjory Forbes should be holden and obliged, each of them to accept of the just and equal half of the said heritage and heritable effects, in full payment and satisfaction of those bonds.
Alexander Ragg, as apparent heir to William, insisted in a reduction of this disposition upon the following grounds: 1mo, That it was executed on death-bed; to which it was answered, that the granter had gone either to kirk or market, unsupported, after signing the disposition ; and in support of this defence, the decisions, Pargilies against Pargillies, No 85. p. 3304.; Lord Balmerino against Lady Cowper, No 77. p. 3292., and the act of sederunt 1692, were adduced. Replied, That the alternative was no qualification of convalescence in terms, but the defenders ought to qualify and instruct, that the disponer had, gone both to kirk and market, because the law of deathbed being consuetudinary, the relevancy of this defence against it must be determined from the acceptation in which our lawyers have taken it, who have constantly conjoined both members in their treatises and pleadings; and likewise from the sense of the nation with respect to this question, which appears from the decisions, Shaw against Gray, No 32. p. 3208., and Maxwell against Fairly, No 84. p. 3303., in which the parties who endeavoured to validate a disposition, never rested their endeavours, by going to kirk or market, but attempted to go to both.
The Lords found it sufficient to support the right quarrelled, that the defunct, granter thereof, went to kirk of market, after granting the same; but found it relevant for eliding the same, that the defunct was supported, to be proven prout de jure.
The pursuer next insisted upon this ground of reduction, ‘That the disposition, containing a faculty to revoke, innovate, and alter at any time during the granter's life, et etiam in articulo mortis,’ he had, in pursuance of that faculty, altered and annulled the same, by granting the two bonds above mentioned, since thereby the subjects in the disposition were fully exhausted, which was a virtual alteration thereof; and in effect the case came to be the same, as if William the disponer had by a second disposition anulled the first, and of new disponed in favours of the persons to whom the bonds were granted; in which case the first disposition would have fallen, and the second would have been reducible ex capite lecti, as was found 23d January 1708, Livingston against Baillie, No 69. p. 3261.
It was answered for the defenders; That the granting of these bonds was no more than an exercise of the reserved faculty to burden; and since they were willing to pay the sums in the bonds, they might retain the heritage; and it was jus tertii to the pursuer to found on these after-rights.
The Lords repelled the reason of reduction founded upon granting bonds to Alexander Ragg and Marjory Forbes, in respect the disponees were satisfied to pay these bonds.
Reporter, Lord Pollock.Act. Ja. Graham, sen.Alt. Jo. Horne & Alex. Garden.Clerk, Justice.
Fol. Dic. v. 3. p. 174. Edgar, p. 157.
