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In a contract entered into between Mr and Mrs Monteath, on the one hand, and the Duchess of Douglas, and Mr Monteath younger, on the other, Mr Monteath bound himself to settle his whole estates on the younger; and on the other part, Monteath younger bound himself to pay all his father's debts, with an annuity to him of L. 100 during his life; and for payment and performance of these articles the Duchess became bound along with young Monteath. The deed contained likewise provisions to Monteath's younger children, for which the Duchess and her heirs were likewise bound. Three months after executing the above deed, the Duchess made a total settlement of her estate in favour of Douglas of Douglas, and others, as trustees, burdened with various legacies, in favour of Mr Monteath's younger children; and she thereby “revoked all former settlements, except a settlement of L. 100 a-year, lately made on Walter Monteath.” On the Duchess' death, Monteath's younger children sued the Trustees for payment, both of the sums due them by the last deed, and likewise by the former, which they argued, being a contract, and not of a testamentary nature, was not revoked by the above clause, nor was it in the Duchess' power to have revoked it. Answered, This is not a question of power but of will. The Duchess was under no obligation to give the pursuers one penny, and if she chose to give them any thing, she had a right to give it under any conditions she thought proper; and the terms of the last deed do most clearly revoke all former settlements and bequests, unless that in favour of their father.—The Lords assoilzied from the action.—See Appendix.
