Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. III.

Competent to the Remoter Heir, after the immediate Apparent Heir's decease.

Janet Schaw
v.
Margart Calderwood

Date: 21 January 1668
Case No. No 15.

The Lords found, that a disposition made in lecto, may be reduced, not only at the instance of the apparent heir living at the time, but he dying, at the instance of the heir who succeeds him.

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Janet Schaw pursues a reduction of a liferent infeftment, granted to Margaret Calderwood by the pursuer's father, as being in lecto. The defender alleged no process, because the pursuer was not heir the time of the disposition, but another heir apparent, who never entered.

The Lords repelled the defence.

The defender alleged, That this being a liferent infeftment to her by her husband, and but of a small value, it was valid, and the husband might discharge that natural debt of providing his wife on death-bed, she having no contract of provision before.—The pursuer answered, That the defender might take the benefit of her terce, which is her legal provision, beyond which, a deed on death-bed (in prejudice of the heir) is null, and this liferent is of the husband's whole estate; and yet the pursuer is willing it should stand, it being restricted to a third of the rents of the lands.

The Lords sustained the infeftment only for a third.

Fol. Dic. v. 1. p. 212. Stair, v. 1. p. 511.