Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Cunningham
v.
Whitefoord

Date: 10 June 1748

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This case is reported by Elchies, (Death-bed, No. 19.) and by D. Falconer, (Mor. 16119.) Lord Kilkerran's note of the reasoning which took place on the bench is as follows :—

“June 10, 1748.—Adhered, by the President's casting vote.

“It was argued by the minority, Primo, That the heir could not quarrel the deed 1746, further than he was thereby prejudged, and that he was not prejudged, so far as it was the same with the deed 1741, for so far he would have been excluded by the deed 1741, had the deed 1746 not been made.

“2do, That he could not approbate and reprobate the same deed; and, therefore, if he founded on the revoking clause in the deed 1746, he could not quarrel the disposition therein made of Whitburn to the defender.

“3tio, That the revoking clause, though general, was not to be understood to mean farther than a revocation of all former settlements, so far as they were different from that now made in 1746, which contained the revoking clause; and to understand it otherwise, and more largely, is captare verba; for no one can believe the intention to have been other than has been said; and though it may be true, that in construing conveyances to lands, there is no arguing from intention against plain words, yet that does not apply to this case, where there is no doubt about the validity of the conveyance 1741, but all the question is upon the import and meaning of a revocation which is animi; that this case differs from any that is to be met with either in our Law Books or Decisions; all the cases to be met with in either, are of two dispositions, to different persons; ex. gr. A disposes to B, a stranger, with a power reserved to alter even on death-bed; he afterwards dispones on death-bed the same subject to C, and the question is, whether the heir of A can quarrel the disposition to C; on which question, besides the authority and decisions referred to in the petition and answers, one was mentioned, of June, 1738, Irvine against Irvine, where, directly contrary to the doctrine in the answer, it was found, that an heir could not challenge a posterior disposition, though on death-bed, in respect of a prior to a different person, which excluded the heir, and contained a power to alter. But if there was not a doubt on that, where can be the doubt where both first and second dispositions are to the same person, and which is the present case ?

“The strength of the argument on the other side, was put upon the generality of the revoking clause, in the deed 1746, so expressed as to admit of no dubiety; but that it was by that deed, and that only, that his estate was to be carried, and which was farther confirmed from the circumstance of his suffering that duplicate which was in his own hands, of the deed 1741, to be thrown into the fire; and there was no arguing from the defunct's animus, contrary to a plain declaration that admitted of no dubiety.

“And as to the point that the pursuer could not approbate and reprobate, it did not apply, unless the pursuer were to take by the deed containing the clause which he reprobates, whereas he proposes to take nothing by it; and, indeed, the import of the revoking clause was the chief question, which the minority considered but as a clause of style, and to be construed from what undoubtedly appeared to have been the animus of the granter.”