Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. V.

Whether Competent to the Creditors of the Defunct.

The Creditors of Couper and Balmerino
v.
Lady Couper

Date: 25 November 1669
Case No. No 25.

Reduction on the head of death bed is competent to the defunct's, personal creditors, for he can no more prejudice them by any deed done on death-bed, than he can prejudice his apparent heir.

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The deceast Lord Couper having made a disposition of his whole estate in fee to his Lady, and thereby having excluded the Lord Balmerino, his apparent heir therein, Balmerino being unwilling to enter heir to Couper, before he knew whether the disposition would stand or not, moves some of Couper's creditors, and some of his own creditors having charged him to enter heir to Couper, to insist in the reduction of the disposition made to the Lady, as being done by Couper, in lecto ægritudinis. It was alleged for the Lady, no process at the Creditors of Couper's instance, first, Because they insist only upon personal bonds, granted by the Lord Couper, and have no real right to the land, and so cannot reduce a real right but upon a real right; so till they have apprised the lands they have no interest, 2do, Albeit Couper's Creditors might reduce the disposition, as betwixt conjunct persons, without an onerous cause, yet not upon the reason, ex lecto, because that is a privilege particularly competent to heirs, but not to creditors, as they are creditors; unless by real diligences, they state themselves in place of the heir, and so make use of his right and privilege. It was answered for the pursuers, That in that they were creditors, they had sufficient interest to crave it to be declared, that the estate of Couper should be affected with apprisings upon Couper's debts due to them, notwithstanding this disposition, which is all the effect of this reduction; and as they may, without any real right, reduce, or declare as aforesaid, upon the act of Parliament 1621, against fraudulent dispositions, so they may declare that any disposition done on death-bed, as it could not prejudge the heir, so it cannot prejudge the creditors of the defunct, or his apparent heir, but that they may affect the said estate, with their legal diligences. It was answered for the defender, that she repeats the former defence, and further alleges, that she is content to take off the interest of Couper's own Creditors, and to declare that the disposition shall be burdened with thjeir debts; but adhered to her defence against Balmerino's Creditors, who, though they produce an apprising yet it is posterior to the summons, and their personal debts can be no sufficient title, nor is there any produced. It was answered for Couper's Creditors, that the declarator in their favours was no way sufficient, nor would give them a real right, nor prevent the diligence of other creditors, 2dly, If they had a good interest to reduce, and thereupon to apprise, no offer could take away that interest but payment.

The Lords found the Creditors had sufficient interest upon their personal bonds to insist upon the reduction, ex capite lecti; but they found that a real security given to Couper's Creditors, equivalent to an apprising and infeftment, was sufficient to exclude their interest.

Fol. Dic. v. 1. p. 212. Stair, v. 1. p. 653.