A person was bound, by contract of marriage, to convey his estate to the heir of the marriage. He conveyed to his eldest son; but inserted a clause, empowering himself to alter at pleasure. The son was infeft, and died; the father exercised his reserved power after his death, and conveyed to his second son. The eldest son's widow claimed terce. Found she might plead upon her husband's infeftment; and yet impugn the reservation contained in it as gratuitous, and in prejudice of the contract of marriage.
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A person, whose estate in his contract of marriage was provided to the heirs of the marriage, did thereafter, in implement of the contract, dispone his estate to his eldest son; but reserving to himself a power to alter at his pleasure. The eldest son having died infeft, and his relict claiming a terce, it was objected by a second son of the marriage, to whom the father, in virtue of the reservation, had gratuitously disponed the estate after the eldest son's death: That the eldest son's infeftment, upon which the pursuer's claim was founded, was evacuated by the conveyance in his favours; and that if the pursuer did plead upon her husband's right, she must take it as it stands.
Answered, The reservation must be held pro non adjecto, being repugnant to the limitation in the contract of marriage; and the pursuer's husband had never accepted of the disposition to tie him down to the unreasonable condition.
The Lords found the pursuer might plead upon her husband's infeftment, and yet impugn the reservation therein contained, as being gratuitous, and in prejudice of the contract of marriage.
