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Scottish Court of Session Decisions >>
John M'Kean v Elspeth Russell. [1740] Mor 616 (16 January 1740)
URL: http://www.bailii.org/scot/cases/ScotCS/1740/Mor0200616-009.html Cite as:
[1740] Mor 616
A creditor, in a bond to himself in liferent, and certain substitutes in see, exercised, on death-bed, a reserved power to uplift without their consent.
By the same death-bed deed he conveyed the money to a stranger. Found the heir at law could not reduce the death-bed deed, to the effect of doing away the substitution, that he might come in before the stranger.
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James M'Kean being creditor to Sir Harry 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, exercise 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. (See Death-bed.)
