Margaret Anderson and John Elphinston v. Mary Wauchop
Date: 22 July 1662 Case No. No. 23.
A clause obliging a party, and his heir-male and successors, on this narrative, that his heir-male had the benefit of his estate, and the heirs-female were excluded, was found to burden the heir primo loco, and that he must be discussed before his executors could be liable.
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Margaret Anderson, and John Elphinston, as heir to —— Anderson, who were the two daughters of umquhile Mr. David Anderson of Hills, pursue Mary Wauchop, his relict and executrix, to fulfil an article of his contract of marriage, bearing, “That if there were no heirs-male of the marriage, he bound and obliged him, and his heirs-male and successors whatsomever, to pay to the daughters of the marriage 3000 merks;” and craved, that the executrix, as representing their father, might pay the same. The defender alleged, Absolvitor, because it is clear, by the clauses of the contract, that the father did not bind himself simply, or himself and his heirs, but that he bound only himself and his heirs-male; which is the more dear that the narrative of the clause bears, “because his estate is provided to his heirs-male.” The pursuer answered, He opponed the clause, by which he did not oblige his heirs-male, but himself and his heirs-male; and so, in obliging himself, he hath obliged all that represent him; and he might have been pursued in his own life-time, if his daughters had come to the age appointed by the provision; 2dly, He has not only obliged himself and his heirs-male, but his successors whatsomever, and therefore his executors.
The Lords found, That, by the tenor of the clause, and narrative thereof, the defunct's meaning was chiefly to oblige his heirs-male, and albeit successors whatsomever were added, yet, by the narrative and order of the words, they found the heir-male was first burdened, and behoved first to be discussed; therefore ordained the defender to condescend what the heir-male had to succeed to; and if he was not entered heir-male, and had nothing to succeed to as heir-male, they thought the defender would be liable.
