Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Campbell
v.
Hedderwick

Date: 18 November 1740

Click here to view a pdf copy of this documet : PDF Copy

[Elch. No. 13, D. Bed; C. Home, No. 158.]

The case here was,—A man upon death-bed disponed his estate to his only daughter and heir, and substituted to her a stranger, to the exclusion of his next heir of line. The daughter entered into a contract of marriage, wherein she disponed to her husband the lands she got from her father, as having right by the disposition from him there narrated, and afterwards died before she was of age, and without leaving any issue. The next heir of line now brings an action for reduction of the father's disposition upon the head of death-bed,—and of the daughter's upon the head of minority and lesion. The Lords were of opinion that the reduction upon the head of death-bed was competent at the instance of the remoter heir, even though the immediate heir was institute, unless the immediate heir homologated the deed by some act of his. But in this case they found, That the daughter disponing, as having right from her father, was a homologation of the father's settlement, which was valid against the next heir, though done in minority. And here a doubt was started from the bench, How far she could have been reponed against such homologation herself ? and How far she could have insisted in a reduction of her father's settlement upon the head of death-bed, though she was first in the disposition ? Lord Elchies thought she could; and quoted a late decision to that purpose. His reason was, That the daughter was injured by the substitution of a stranger, to the exclusion of her heir-at-law; especially as during her minority she could make no alteration in the succession. Upon this arose another doubt, How far a minor could make a settlement of his heritage?