Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Jean Macadam and David Logan v. Quinten Macadam
Date: 15 February 1700
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David Logan and Jean Macadam, his wife, pursue Quinten Macadam in Waterhead of Girvan, her brother, for her legitime and bairns' part of gear; which she alleged was the half, seeing there were but two bairns, and the relict was excluded by her provision in her contract-matrimonial.
Alleged,—By the same contract, the conquest was provided to the heir-male; and, conform to that destination of succession, his father had disponed to him his haill goods, with the burden of 2000 merks of portion to the said Jean; and so this being a conveyance and disposal of his haill executry, there was no place for her legitim, but she must be content with the 2000 merks.
Answered,—The disposition reserving the father's liferent, and being only to take effect after his death, it could not prejudge her legitim: and she might repudiate the provision given, or crave it to be made up per quœrelam inofficiosi et supplementum legitim?.
Replied,—All lawyers agree that a father may not prejudge his bairns of their legitim by testament, legacy, or donatio mortis causa, nor any other deed on deathbed, because then exposed to the insinuations of flatteries or threats: but where he settles his estate inter vivos and in liege poustie, and declares it to be in satisfaction of their legitim, the same is obligatory, and cuts off the legitim, though it be not to take effect till after his death; seeing he is dominus et arbiter rei suœ, and knows best how to distribute his estate among his children; as was found in the case of Thomas Wylie and his bairns: even as much as when he takes a bond to himself in liferent, and to such a child nominatim in fee, that substitution will cut off and exclude the legitim, and the other bairns can have no share of that sum.
All agreed that, by no testamentary or deathbed conveyance, he could prejudge the legitim: but some of the Lords thought, that, notwithstanding of the bonds of provision, or dispositions inter vivos, if they retained either the liferent or a faculty to revoke and alter, the children, in their option, might either accept, or repudiate and claim their legitim; but that, if they did transmit it to strangers, or make absolute rights to their children, these would subsist. The point seeming of importance, and to derogate from the paternal power, the Lords ordained the case to be argued in their own presence.
