Collation takes no place where it is prohibited; as, for example, where a father, in his daughter's contract of marriage, besides her tocher, made this provision, “that she should have an equal proportion of his goods at his death with his other children.”
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This cause being mentioned the 9th of February 1631*, and it being further alleged by the defender, That the pursuer, by virtue of the clause libelled in the contract†, would have right to no more, but to her part of the dead's part of his goods and gear, and could not acclaim a portion natural thereof, with these two daughters defenders; for albeit by that contract, she might have right to her equal part of all, both for bairns-part, and for the dead's part, with her two sisters named in that contract, now deceased, yet that might lawfully have holden, where both she and these two sisters were all forisfamiliate, before this contract; but it is not alike, for these two defenders who are begotten since, and have received no part of their father's goods, and who want their portion natural, so that of reason they ought to have their portion natural, as the pursuer got, and as the two defunct sisters got; and after that, the pursuer might be partner of the rest; otherwise if she acclaimed to be portioner of all the defunct's goods, she ought to confer with the defenders, that portion she got from her father before. This allegeance was repelled, and the Lords found, that the pursuer ought to have her equal part of the defunct's goods, with these defenders, without any collation of that which she received before, to which the Lords found, that she could not be compelled.
Fol. Dic. v. 1. p. 149. Durie, p. 573.
* The case alluded to is, M'Millan, &c. against Corsans, Durie, p. 566., voce Provision To Heirs And Children.
† The terms of the contract are stated on the margin above.
