Under Sentence of Death. - Effect of Reduction capite lecti. - Ratification upon Oath. - Sale for a Reasonable Price. - Equivalent benefit to the Heir.
Irving v. Irvings and Others
Date: 4 November 1744 Case No. No 114.
No renunciation or discharge by the heir of the law of deathbed, during the lifetime of the ancestor, can give that ancestor the power of disposing of his property on death-bed, or can bar the son's title to reduce.
Click here to view a pdf copy of this documet : PDF Copy
In the contract of marriage of Patrick Irving younger of Prestonpans, his father Patrick Irving elder, disponed to him certain tenements, which, with 2000 merks, which he acknowledged himself to have formerly received from his father, “he accepts of in full contentation and satisfaction of all he could any ways ask or pretend to from his father, by virtue of his mother's contract of marriage, or any other manner of way; and in full of all interest, claim or pretence he could pretend to, or claim of his father's estate, personal or real, after his death, excepting his father's good will; and discharges his father and his heirs for ever.”
Thereafter Patrick Irving elder having, while on death-bed, disponed certain heritable subjects in favour of his younger children, Patrick, the eldest son, brought a reduction thereof upon the head of death-bed. And, at first, the Lords ‘Repelled the reasons of reduction,’ by a narrow majority, who considered the contract as implying a renunciation by the eldest son of the law of death-bed for an onerous cause, and which ought to be effectual, even though such renunciation, when gratutious and impetrated by the father, would not be available; which was said to be the case of Inglis contra Hamilton, 4th December 1733, No 106. p. 3827.
But, upon advising bill and answers, it was argued, That the contract did not even imply a renunciation of the law of death-bed, as it only dicharges the father of any obligation he might be under to his son by his mother's contract of marriage, or otherways; and renounces all claims that might arise from any obligation of the father's at his death, but by no means bars the son from succeeding to his father in any estate which he should happen not otherwise to dispose of, and consequently, the son must be entitled, upon any legal ground, to quarrel every deed whereby he is debarred from that succession; and separatim, that even the most express antecedent consent of the son could not have conferred on the father a power of disposal of his heritage on death-bed; for, that though an onerous cause on the part of the father may support his death-bed deed, as where he is previously obliged to dispone, yet no clause, however onerous, can be pleaded in support of the son's renunciation of the law of death-bed, as such renunciation is a non obstante to the law of the land.
The Lords altered their former, interlocutor, and ‘sustained the reasons of reduction.’ See No 49. p. 2304.
Fol. Dic. v. 3. p. 170. Kilkerran, (Death-bed.) No 4. p. 152.
