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Scottish Court of Session Decisions >>
Robertson v Debtors. [1628] Mor 3207 (16 February 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor0803207-029.html Cite as:
[1628] Mor 3207
Death-bed Deeds are Effectual, and afford jus exigendi, unless Challenged by the Heir.
Robertson v. Debtors
Date: 16 February 1628 Case No. No 29.
Found not competent for debtors to object to an assignation granted upon death-bed, by a defunct to his wife, of certain sums, both heritable and moveable, as being in prejudice of the heir and executor, when they themselves did not challenge it.
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In an action betwixt Robertson and her Debtors, the pursuer being relict of her husband, and being made assignee by him to certain bonds and sums, contained in the assignation therein specified, addebted by the Debtors to the husband, and done long before the decease of her, husband, pursues the Debtors contained in the assignation, for payment of the moneys owing by them. The pursuit upon this assignation was sustained at the, relict's instance, both for the bond of heritable sums, and, also of moveable sums, whereto she was made assignee by her husband, notwithstanding that the Debtors alleged, That the same assignation made by the husband to the wife, could not be sustained to produce this action, being made to prejudge the heir and executors of the defunct; and that this assignation could not be respected in their prejudice but for the relict's own part, or as a testament; which allegeance was repelled, seeing it was not alleged, that the assignation was made on the maker's death-bed; neither was it ever alleged to be revocate by the husband before his decease, after the making thereof; neither was the assignation quarrelled, either, by the heir or executors of the defunct, and it was not competent to the Debtors, to quarrel the same upon this ground.
Clerk, Scot.
Fol. Dic. v. 1. p. 213. Durie, p. 346.
