Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 REVOCATION ON DEATH-BED.

Abram Rowen
v.
Robert Alexander

Date: 22 November 1775

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Sir James Cuningham executed a disposition of his estate in favour of his brother David, his heir-at-law, and charged him with certain provisions to other friends, reserving a power to alter. Accordingly Sir James, (10th June 1748,) made a new disposition in favour of his brother, with additional burdens. In a reduction of this last disposition, ex capite lecti, at the instance of David, the Lords found him free of both;—of the first, as expressly revoked by the second; of the second, on the head of death-bed. But, says Lord Bankton, (Vol. II, p. 306,) this would not have been found, had there not been an express clause in the second disposition, revoking the first. An implied revocation would not have been sufficient, unless the deed whereby it was inferred had been found to subsist.

Accordingly, another case occurred to this purpose.

James Rowan, in 1768, disponed an heritable debt on the estate of Westsheilds, to John and Robert Rowans, his nephews, by a younger brother, Hugh, reserving a power to alter, even on death-bed.

When on death-bed, anno 1768, he disponed the same debt to another nephew, Robert Alexander, by a sister; but this deed contained no revocationof the former. Abraham Rowan, the son of James's elder brother, and heir of conquest, brought a reduction of these deeds, and contended, that he had right to this debt, because the first disposition was revoked by the last; and the last was reducible at his instance, ex capite lecti. The defence chiefly insisted on was, that the first deed was not expressly revoked by the last; and therefore, although the last deed should be taken out of the way, the first would still subsist; “and so the Lords found, (22d November 1775;) they held a virtual revocation of the first not sufficient, and assoilyied the defenders.” And the decision was well founded; for, if a death-bed deed contains both a disposition and revocation, there may be some reason for maintaining, that, though the disposition be set aside, the revocation may subsist; because they are distinct; et utile per inutile non vitiatur; but, when the death-bed deed contains no revocation, and is cut down on the head of death-bed, it cannot be maintained, with plausibility, that it ought to subsist as a revocation.