Scottish Court of Session Decisions

Subject_1 DEATH-BED

William Irvine
v.
Agnes Irvine and Her Husband

Date: 28 November 1738
Case No. No. 10.

Title to pursue reduction ex capite lecti.

Click here to view a pdf copy of this documet : PDF Copy

John Irvine of Drumcoltran, in 1708, disponed his lands to his youngest son Thomas and his heirs, reserving a power to alter. In 1711, after Thomas's death, he, upon the narrative of good deeds received from Thomas, obliged him to reiterate and renew all dispositions in favour of Thomas, in name of his son Christopher and the heirs of his body, whom failing to the descendants of his own eldest son; and this paper, among a bundle of other papers, he put in the hands of his ordinary writer. In 1713, a few days before his death, he granted: a new disposition in name of Christopher, then an infant, his heirs and assignees, to which Agnes Irvine his sister has now succeeded. William Irvine, heir-at-law to John by his eldest son, pursues reduction of this last disposition 1713, ex capite lecti, both as heir of the investiture and as substitute, failing heirs of Christopher's body, by the obligement 1711. The Lords thought the putting that writing with others in his writer's hands was no delivery, and though it had been delivered was alterable, being only an obligement to renew a disposition that reserved a power to alter; and that as Christopher could not on the head of death-bed quarrel any alteration, no more could these substitutes to him; and here all the alteration was in Christopher's favour, and both that deed and the disposition 1708, excluded reduction ex capite lecti at the pursuer's instance as heir-at-law; and therefore found that the pursuer had no title either as heir or creditor to reduce the disposition in Christopher's favour.