Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. IV.

Competent to a Wife; - and to Children.

John Alkman, Goldsmith in Edinburgh,
v.
David Boyd's Relict

Date: 29 January 1679
Case No. No 21.

The wife and children cannot be prejudged by any deed on death-bed, more than the heir.

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The Lords found, seeing the assignations did not exhaust the defunct's whole moveables, that the general legacy was only to be extended to the superplus posteriore testamento rumpitur prius, and so might consist with the assignations; but if the assignation had been of all the moveable estate, it would have been decided otherwise; for the Lords distinguished thus, viz. that assignations made and delivered on death-bed, were not of a testamentary nature quoad legatars, but fully excluded them from all part of the sums assigned; but acknowledged they were of a testamentary nature as to the interest of the relict, children, cretors, commissars quot, and confirmation dues, as has been decided.

Fol. Dic. v. 1. p. 212. Fountainhall, MS.