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The Lords found it not unlawful to Mr James Aikenhead to sell to his brother, Mr Adam Bothwell, all the gear that his wife should happen to fall by the decease of Adam Bothwell her father, nothwithstanding of the civil law alleged quod pactum sit illicitum de successione viventis.
Fol. Dic. v. 2. p. 23. Auchinleek, MS. p. 21.*** Durie reports this case:
Adam Bothwell being obliged, in the contract of marriage betwixt Mr James Aikenhead and his daughter, to make her a bairn of his house at the time of his decease, diverse years after there is a contract made betwixt the eldest son of the said Adam Bothwell, brother-in-law to the said Mr James, and the said Mr James, whereby the said Mr James dispones that clause of the said contract, and all benefit which he might have thereby, or by the decease of his said father-in-law, to his said good-brother, who is obliged therefore, by his particular bond, to pay Mr James 8000 merks, at the first term after his father's decease; which bond being desired to be reduced at the instance of the said Adam Bothwell's son, upon this reason, because it was pactum contra bonos mores factum super hæreditate viventis, which is forbidden in law, for thereby the good-son sells his partage of the goods, which he may succeed to, or fall to him, by his father-in-law's decease: This reason was not sustianed, but an absolvitor was given therefrom, because the civil law in this case (albeit also it receive diverse constructions and limitations, as if such pactions be made, consentiente eo, de cujus hæreditate paciscuntur, tunc pacta sic facta tenent, and sundry others) has no place, according to the laws of Scotland, as in tailzies and renunciations of the bairns' part of gear, and others; and this was a disposition of that which was provided by the father-in-law to his good-son, in his contract of marriage, which might be in law disponed upon by him, in whose favours it was conceived.
