A disposition by a father to a younger son, in its nature a donatio mortis causa, was, notwithstanding, sustained, because the father was considered to be the best judge of the distribution of his effects.
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Mersington reported Johnston in Haddington, against Johnston his brother, for reduction of a disposition made by their father to the younger son of all his moveables, on this reason, that it was truly of a testamentary nature, though done in liege poustie, and so could not prejudge him of his legitim and portion-natural; and bore not only a power to alter, but an obligement upon the son to consent to any deeds or rights his father should make thereof, which plainly brought it to the case of a donatio mortis causa. Answered, The disposition was an act inter vivos, and rational in the father to do it, seeing he had bound his eldest son to a silk-weaver, and had given him his patrimony. The Lords considered the father was best judge of the distribution of his means, (as they had formerly found in the case of Thomas Wylie's Children*;) and, therefore, sustained the disposition, and assoilzied from the reduction. Some were for trying how much the eldest son had got, that he might collate, and
* See General List of Names.
bring in the same into the equal division of the goods between the two brothers, in case the disposition were reduced quoad an half; but it carried ut supra.
Fol. Dic. v. 1. p. 545. Fountainhall, v. 1. p. 753.
