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Payment and Consignation how relevant to be proved.
A v. B
1683.
February. Case No. No 152.
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A father having obliged himself, in his eldest son's contract of marriage, to make payment of 1000 merks to him, and also to make him equal sharer in the goods, sums of money, heritages, and others pertaining to him the time of his decease, whereby one of his children should not have more of his estate than another; and having afterwards, in his second son's contract of marriage, provided the greatest part of his estate to him; this was quarrelled by the eldest son.
It was alleged for the second son; That the obligement relating to goods the father should have the time of his decease, did not hinder him to dispose of his estate to any person, by a deed inter vivos.
Answered; The father could not disappoint the obligement by lucrative deeds.
The Lords found the father might provide the second son to a competent provision effeiring to his estate, but not exorbitantly to disappoint the obligement; and, although the first son had a stocked room, and an estate far above the 1000 merks in his contract; which the defenders alleged ought to be presumed given him by his father, in satisfaction of the obligement, and which they offered to prove by witnesses; the Lords found the payment only probable seripto vel juramento, the obligement being in writ. See Provision To Heirs And Children.
Fol. Dic. v. 2. p. 225. Harcarse, (Contracts of Marriage.) No 353. p. 88.
