A grant by a husband in favour of his wife, given in consequence of a treaty with her relations, to relinquish a claim by which she would have been deprived of a right she was entitled to, was found no donation by the husband, and not revocable.
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Patrick Cochran being obliged in Robert Dawling's contract of marriage with the said Patrick's daughter, to make her equal with the rest of his bairns, the time of his decease, the said Patrick thereafter, by the space of four or five days before his decease, which was seven years after the said contract of marriage, makes his eldest son assignee to all his goods, whereby the said clause of the contract, if the assignation had subsisted, had been elided; whereupon Robert Dawling having raised action to annul the said assignation, as done on death bed, and to his prejudice, in the said clause and contract of marriage; the said assignee, and he, by intercession of friends, agreed by contract to annul the assignation, in so far as thereby the said Robert his contract was prejudged; and at that same time, the said Robert grants a bond to the said assignee his wife's brother, to infeft her in liferent in 400 merks yearly, wherein no mention nor relation was made to the said contract; which bond being desired to be reduced, because it was donatio inter virum et uxorem, and was revoked, the Lords found the bond neither reducible nor revocable; for it was found to be a part of that contract, whereby the foresaid assignation was renounced, (albeit it was a distinct several writ, having neither relation thereto, nor dependence thereon,) seeing it was of the same date, and betwixt the same parties, and before the same witnesses; and so it was found thereby, that it was donatio remuneratoria, which de jure inter conjuges valet; albeit the reducer alleged, that it could not be called remuneratoria donatio, seeing the renouncing of the assignation done on death-bed, which was thereby null in the law, was no benefit, for which the bond quarrelled might be maintained to have been given in remuneration, by reason he got no more thereby, than before was conditioned to him by the contract of marriage, and which could not be prejudged by that assignation done on death-bed, neither did the bond make any reference to the said contract of agreement, and had nothing to do therewith, but was a several writ not done eo intuitu: which reply was repelled, and the bond sustained.
Act. Aiton & Stuart.Alt. Nicolson.Clerk, Gibson.
Fol. Dic. v. 1. p. 410. Durie, p. 522.
