Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. I.

Reduction capite lecti, to whom Competent.

Irving
v.
Irving and her Husband

1738. November.
Case No. No 4.

A substitute cannot reduce in a case where the institute could not.

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A disposition having been granted in liege poustie to a younger son, with power to alter, thereafter a new deed was granted in favour of the son of the said younger son, with a substitution to the eldest son; and, after all, a third deed on death-bed to the said son of the younger son, his heirs and assignees.

Of this last deed, a reduction on the head of death-bed being pursued by the eldest son, not only as heir at law, but as heir substitute, and of which right of substitution he could not be deprived on death-bed; it was found, ‘He had no right to reduce either as heir of line, because of the first disposition in liege poustie, or as heir substitute; because, however a substitute has been found entitled to reduce, that was only where the deed was prejudicial to the institute. But, in this case, the institute was not prejudiced but benefited; and in no case can the substitute reduce where the institute could not.

Kilkerran, (Death-bed) No 1. p. 151.