A contract betwixt a father and his daughter, hereby he was provided to a certain sum payable at her decease, and which he accepted in full of all that might fall to him by her decease, was found to be a donatio mortis causa, and alterable at pleasure.
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The bairns of one Bell, their umquhile father, pursuing for a legacy of 300 merks, left to their mother in legacy by their mother's sister; and the father of the testatrix claiming the same sums as pertaining to him, in respect, that, by contract betwixt him and the testatrix, it was expressly appointed, that the father should only receive payment of 300 merks, and which was contracted by that contract to be paid to him out of the readiest goods and gear pertaining to his said daughter, and which he bound himself to accept, in full satisfaction of all which might befall to him, and which he might claim by the decease of his said daughter; and the said daughter thereafter, in her testament, leaving in legacy this same sum of 300 merks, contained in that contract to her sister, whose bairns, and the father contractor foresaid, contending which of them hath best right to this 300 merks, or if ilk party should have right to 300 merks as distinct, and two several sums,——The Lords found, that this was but one sum, and not two; and the Lords found, that the legatar's bairns had the only right thereto, and not the father, by the contract; because, albeit it was conditioned to the father by the contract, prior to the legacy, yet the contract in that part was repute as of the nature of a testamentary cause, and so the last legacy done by the testament was preferred to that prior will specified in the contract, which was revocate by the said last legacy; neither was it respected, the expressing of this in a contract to make it to cease to be accounted as an act sapiens naturam rei testamentariæ; or that thereby the father was a creditor, who, if he had been one, could not be prejudged by any posterior will or legacy of the testatrix, except that the father could shew and qualify, that the defunct was his debtor, and that in law she was holden to him in this or the like sum, and that she might have been found legally astricted to him in any sum less or more, which not being shown, the legatar was preferred.
Act. Craig.Alt. Primrose.Clerk, Hay.
Fol. Dic. v. 1. p. 250. Durie, p. 805.
