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A testament being executed in liege poustie, with the common preamble usual in such deeds, nomination of an executor, burden of debts, &c. the following clause is adjected: “Which several debts and expenses of my funerals, I hereby appoint the said Sarah Brand to pay out of the first end of her intromissions as executrix; and for the better enabling her so to do, I hereby make, constitute, and ordain her, her heirs and donatars, my cessioners and assignees in and to the principal sum of £.500 Sterling, heritably secured upon the estate of Bransfield.” In a reduction of this testament by the heir, in so far as concerned the heritable subject, the defence was, That nothing hindered a testament and assignation inter vivos to be upon the same paper. Answered, Where the deed is principally intended to be a disposition or conveyance inter vivos, it will be effectual, though a nomination of executors or other testamentary clause be adjected. But where the deed appears to be a formal testament, there a conveyance of heritage is inept, if fixed law and practice is to be the rule. And one reason is, That a testament, at whatever time executed, has no effect but as being the last will of the defunct; it is therefore construed in law to be the deed of the latest minute, equally as if it bore that date; and so testaments, from the nature of the thing, must be ever subject to the law of death-bed. It is otherwise in deeds inter vivos, which, though not delivered, are understood to be valid of their date, subject indeed to revocation or alteration; and if valid of their date, they must be safe from the challenge of death-bed, where executed in liege poustie. The Lords sustained the reason of reduction.—See Appendix.
