In abcertaing whether the granter of a deed challenged on the head of death-bed, has lived sixty days, the day of its date is excluded, but the day of the granter's death is held to be completed, if he has survived any portion of it.
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Hugh Mitchell executed a disposition of part of his heritable property in favour of Margaret Watson, on the 23d May 1799.
He died on the 22d July following.
Stephen Mitchell, his heir-at-law, averred, that at the date of the disposition, Hugh had contracted the disease of which he died, and never afterwards went to kirk or market. He further averred, that Hugh executed the deed about two o'clock afternoon of the 23d May, and that he died about one o'clock of the 22d July.
On these facts he instituted an action of reduction of the deed on the head of death-bed, and
Pleaded: It is settled by the case 10th December 1793, Ogilive against Mercer, No. 114. p. 3336. that in ascertaining whether the granter of the deed has survived its execution for sixty days, the day of its date is not to be counted. Now, according to this mode of reckoning, Hugh Mitchell survived only fifty-nine days, and a part of the sixtieth; and as the heir is the persona prœdilecta, the defender cannot take the advantage of the maxim, Dies inceptus pro compteto habetur; for that maxim has place only in favorabilibus.
Besides, the operation of the maxim is precluded by the act 1694, C. 4. which expressly requires, that “the person live for the space of therescore days.”
The Lord Ordinary “assoilzied the defender,” and his Lordship added the following note to his judgement.
“The above interlocutor is founded on the admission, that the deceased died at one o'clock afternoon in the sixtieth day after executing the deed under reduction, not reckoning the day of its date, so that I apprehend there is of course room for the rule, Dies inceptus pro completo habetur.
On advising a reclaiming petition against the Lord Ordinary's judgment, it was
Observed on the Bench: The interlocutor is fully supported by the principles of the judgment in the case of Ogilvie against Mercer, in the House of Lords, of which an account is given in the Dictionary, No. 114. p. 3343. voce Death-bed.
The Lords refused this petition; and a second on the 24th February.
Lord Ordinary, Meadowbank.Act. Maxwell Morison.Alt. M'Cormick.
Fac. Coll. No. 217. p. 493.
*** See Note under the case of Ogilvie against Mercer, p. 3343.
