Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. IX.

Reserved Faculties whether reducible upon Death-bed.

John M'Kean
v.
Elspeth Russel

Date: 16 January 1740
Case No. No 70.

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James M'Kean being creditor to Sir Hary Innes in a bond for 2000 merks, payable to himself if in life, and, after his decease, to certain other persons, containing a power to James, at any time in his life, to uplift, receive, and discharge the same, without consent of the persons whose names were therein mentioned, did, on death-bed, exerce this faculty, and gave it away, not only from the heirs at law, but likewise from the substitutes.

In a reduction on the head of death-bed, it was pleaded for the heir at law, That the death-bed deed did evacuate the substitution, whereby there came to be place for him; and though with the same breath the subject is given away to strangers, the alienation could not be effectual against him, being done on death-bed.

The Lords repelled the reason of reduction.

Fol. Dic. v. 3. p. 172. C. Home, No 140. p. 240.