What is a sufficient proof of death-bed in a person who had been long confined to bed?
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In the 1737, John Primrose disponed his lands of Burnbrae to the pursuer, his heir at law; but, in the 1752, when betwixt 70 and 80 years of age, and confined to his bed, he destroyed that disposition, and disponed the lands to the defender, the son of his natural brother.
John Primrose neither went to kirk nor market after executing the last disposition, and died within 41 days of its date.
The pursuer obtained himself served heir in general to John Primrose, and brought a reduction of the disposition 1752, upon the head of death-bed.
The defender contended; That the deceased was not on death-bed when he executed the deed, but was only confined to his bed by old age, and a weakness in his feet; that he died of an apoplexy, with which he was seized eight days before his death.
‘The Lords allowed a proof to both parties of the condition of the health and capacity of the deceased at the time of his granting the disposition quarrelled, and for some time before and afterwards to the time of his death.’
At advising of the proof, the pursuer pleaded from the evidence, That the deceased had been seized with the gout in his hands and feet about 14 years before his death; and that the fits of that distemper generally recurred upon him twice a-year: That he had been seized with an iliac passion about a year and a half before his death: That this distemper was removed by proper medicines; but that his constitution had been thereby impaired: That watery-swellings appeared in different parts of his body; and that he had remained bed-rid for several months before his death: That the surgeon who had formerly attended him, and who had occasion to see him about a week before his death, depones, That, in his opinion, the iliac, passion threw him into a lingering distemper, whereof he at last died: That other persons who saw the deceased both before and after the date of the deed quarrelled, depone, That he appeared to be in trouble, and to be an infirm and dying man: That a few days before his death, he was seized with a trembling fit, and from that time became sensibly weaker and weaker till he died; but, that this fit must not be considered as a new distemper, but as the crisis of the distempers under which he had long laboured.
The defender answered; That, at the time of executing the deed, John Primrose did not appear to have contracted the disease whereof he died, nor in-deed to have been affected with any disease at all. He was confined to his bed by old age and a weakness in his feet, occasioned by former fits of the gout He was seized with a trembling fit a very few days before his death, and more than a month after he had executed the disposition quarrelled; from that fit is the disease whereof he died to be dated; the iliac passion being an acute distemper, could not be the cause of his death after an interval of a year and a half. Neither could the gout be the cause of his death; for that it was fixed in the extremities of his body; and a gout of that nature is not to be held a disease rendering one incapable of disposing of heritage. Besides, the deceased was not actually affected with the gout when he executed the disposition quarrelled, but had only contracted a lameness from former attacks of that distemper. The sudden illness whereof he died, can no more be connected with the gout and iliac passion, than an ague in one year, and a flux in the next, can be connected with a fever whereof one dies in the third year.
‘The Lords found the reason of reduction relevant and proven, and reduced the deed.’
Act. A. Pringle & Bruce.Alt. Miller & Lockhart.Clerk, Kirkpatrick.
Fol. Dic. v. 3. p. 173. Fac. Col. No 183. p. 273.
