Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.

James Russel
v.
Gordon

Date: 19 December 1739
Case No. No. 13.

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A father having settled the terms of his son's marriage-articles, but forgot to provide for his younger children, though he was to give his son all his estate, wrote to his correspondent and to his son before the contract, that he behoved to secure them in L.20,000 Scots, but seemed afraid to make it known to the bride's friends, least they should be startled, and therefore it was not told them; but the son having agreed, the contract was signed in terms of the first proposals, and some days after the son granted his bond to the younger children nominatim, payable after his father's death for such shares of the L.20,000 as the father should appoint to each, at least so much thereof as should not be paid by the father in his own life, or by what should be left or fell to them at his death; but some time after the father gave up this obligation to the son after one of the children had privately registrated it in the register of probative writs. The Lords found the transaction contra fidem tabularum, and therefore not effectual even against the son during the existence of the wife and children, 2dly. That there was no jus quæsitum by it to the children, and that the father might give it up. Vide Hamilton against Hamilton, voce Provision to Heirs and Children.