Scottish Court of Session Decisions

Subject_1 DEATH-BED.

Mackean
v.
Mackeans

1740, Jan. 15.
Case No. No. 12.

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

I was this week in the Outer-House, and I mark their papers chiefly for one question, Whether bonds secluding executors, containing a power to alter at any time in life, etiam in articulo mortis, may be disposed of on death-bed. I am told the Lords did not determine that general point, though several thought it could not;—but they found that the reserved power in this bond referred not to the succession of the heir, but to the liferent given to the wife, and that therefore he could not dispose of it on death-bed in prejudice of the heir. I own I doubt of the first part, because without the addition of that part of the clause etiam in articulo mortis, the other part would enable him to dispone in prejudice of the liferentix at any time, since she had not the benefit of the law of death-bed, and therefore that addition could only be intended with relation to the heir, and that would bring it to the general point, which deserves to be well considered, though I cannot say that I altogether differ from the interlocutor. They a fortiori found the law of deathbed extended to the other bonds secluding executors; but they rightly found, that it did not extend to Sir Harry Innes's bond, where the only deed altering the original substitution was the death-bed disposition, which therefore did not prejudge the heir; besides, the bond was sua natura moveable, the substitution did not render it heritable, and he might have disposed of it even by testament;—and they likewise justly found the disposition of the lands reducible where the original destination was first revoked, and at the distance of several days a disposition of it made in prejudice of the heir on deaths-bed