United Kingdom House of Lords Decisions

Lord Chancellor.—My Lords, in this case I submit to your Lordships that there is no occasion for the learned counsel on the part of the respondents to proceed, as, on the facts and the law, there can be no doubt that the decision of the Court below must be affirmed. I say this with great respect for the authority of my Lord Glenlee, who differed with the learned Judges on one point; but I must say, that he takes a view of the law extremely different from that which I have always considered to be laid down by the most approved text writers. On the first question I think there is no doubt whatever. The counsel for the appellant have discharged their duty to this poor person, and stated the case in the only way in which it could be stated with any chance of success, by abandoning the first point. They had no ground to stand on after the evidence of the two professional men, who deposed that the lady knew perfectly well what she was about; that she made an objection to taking another person's seal; that she motioned to take her own, and accordingly did seal the deed with her own wafer-seal. No will could ever stand if this instrument were set aside on the ground of general irregularity of habits previous to the execution of it. The only question is, whether it can be reduced ex capite lecti, and can be brought within the rules on this head of the Scotch law, which protects a party on his death-bed from the effects of disease—from the efforts of bystanders— on a mind enfeebled by disease, or labouring under great weakness and general infirmity. We have always understood the law of death-bed to be this,— that if a party does not go out unsupported to church or market, or survive sixty days the execution of a deed, the deed is reducible ex capite lecti, at the instance of the heir-at-law, who is ousted of his succession by its operation, or of the parties who have a right to stand in the shoes of the heir-at-law, with this qualification, that the maker of the deed must at the time of execution have been ill of the sickness of which he died. It is of great importance that so material a part of the law of Scotland— one so wholesome and so judicious—should be well understood, to prevent mistakes and consequent litigation. I should have been satisfied with merely moving your Lordships to affirm this judgment, without going into the case, had it not been for my Lord Glenlee's doubts; but, in the first place, there is the high authority of Lord Stair, who is plainly of opinion that you must connect the disease with the death, otherwise it is not death-bed. “If sickness contracted be presumed or proved, whether there be necessity to prove the continuance of the sickness till death, or that the defunct died from the sickness, or if the sickness once contracted be presumed to continue, unless convalescence and recovery of health be proved, it is commonly held, that if it be proved sickness was contracted, and that death followed, probatis

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