Reduction of a death-bed deed was found incompetent, in a case where the institutes in the disposition challenged, who were the nearest heirs at the time had obtained possession, and the action was at the instance of a remoter heir.
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William Pringle, upon deathbed, made over certain heritable subjects to Mary and Marion Pringles, his two daughters, and only children, and failing of these, in favours of James and Adam Parkers his nephews; Marion, the youngest daughter, died an infant, and Mary, the eldest, married the said James Campbell, to whom she conveyed the whole subjects, (by a postnuptial contract), disponed by her father, and thereafter died, in minority, without issue. William Hedderwick being likewise a nephew to William Pringle, by his eldest sister, and being by his uncle's death-bed deed cut out from a share of the succession to him, upon the failure of his two daughters, brought an action of reduction of that deed against James and Adam Parkers, as done on death-bed, to his hurt and prejudice; and against the said James Campbell upon the head of minority and lesion. In support whereof, it was pleaded, That the law of death-bed takes place in favours of remotes heirs, as well as those that are immediate heirs to the granter, unless such deed has been ratified by a person having a title to quarrel it; and that, in the present case, there is no such ratification of the deed in question as ought to exclude this action; see chap. 18. § 7. Book 2. of the Reg. Maj. chap. 13. stat. Will. Craig, L. 1. Dieg. 13. § 36. Margaret Gray, No 16. p. 3196.; Sir John Kennedy, No 22. p. 1681. It remains then to be considered, if Mary and Marion Pringles, the daughters of William, so far acquiesced in and homologated the deed in question as to exclude the pursuer. As to which, Marion died an infant and so could not do any deed importing an acceptance thereof; and as for Mary, the other daughter, she never made up any title as heir to her sister, to her interest in the subjects contained in her father's disposition, and which remain in hæreditate of Marion at this day; and the acceptance of the deed quarrelled by Mary the eldest daughter, appearing only by a postnuptial contract of marriage, cannot exclude the pursuer from this action, in regard she died in minority; during which time, as she could not by any deed of hers settle any order of successors in heritable subjects, neither could she so far ratify her father's deed, as to exclude any person who had a legal title to quarrel the same; nay, she could have revoked that acceptance, and insisted in a reduction of the deed in question, since she was leased thereby, in so far as substitutes were named by her father to her, to the exclusion of her nearest heirs; much more has the pursuer, who is chiefly hurt, a right to insist in the present action, now that the succession is opened to him.
Answered for James Campbell; That supposing there had been no deed of the nearest heir, either exprest or implied, homologating and accepting of William Pringle's death-bed deed, yet that no action of reduction was competent to a remote heir, when the nearest and immediate heir was institute; but as this is not the present case, it was needles to insist upon it. Further, it was said, that if either Mary or Marion Pringles accepted of the disposition from their father, such acceptance excluded all other remote heirs, such as the pursuer, from challenging the same upon the head of death-bed. 2do, That Marion Pringle's share of her father's estate was fully vested in Mary, by her survivance, without necessity of a service, in terms of the deed quarrelled. 3tio, That it was jus tertii to the pursuer to make this objection. And, lastly, That Mary could not revoke the acceptance, as the terms of the contract of marriage were reasonable, and that it is certain minors may enter into marriage-contracts; and that it could not be maintained she was leased by accepting her father's disposition, and possessing the subjects disponed; which excluded the pursuer from quarrelling the disposition on the head of death-bed, and consequently, from quarrelling the marriage-settlement she afterwards made with James Campbell. See 4th July 1632, Davidson against Hamilton, voce Minor; 22d November 1664, M'Gill against Ruthven, voce Homologation.
The Lords found, that the institutes in the disposition quarrelled, who were nearest heirs at the time, having attained possession, the same is not reducible at the instance of the pursuer, a remoter heir; and therefore found him not entitled to insist in this action of reduction.
