A wife, in her contract of marriage, having accepted a certain sum, for all she could crave by her husband's decease, in case there were no issue of the marriage, the restriction was found not to take place, as there was one child who survived the mother.
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By contract of marriage betwixt James Morison and Agnes Forsyth, he is obliged to employ 8000 merks to them and the bairns of the marriage; providing, that if it shall happen Agnes to die before her husband, having no bairns on life, James is obliged to refund L. 1000 of her tocher to her or her executor in satisfaction of his moveables; and which provision, she for her and them, accepts in satisfaction foresaid. Agnes dies, having a child, and thereafter both child and father dies, and Mr James Forsyth, brother and executor to his sister Agnes, pursues Archibald Morison, as executor to his brother James, for a third of James's moveables, there being bairns of a former marriage. It was alleged, The pursuer could not have a third, because his sister had accepted L.1000 in contentation, &c. It was answered, The clause was conditional, in case there should be no bairns. Replied, Though the words of the condition be only ‘in case there should be no bairns,’ yet the intention of the parties et quoad actum est certain has been, whether bairns or not; because, her interest in his moveables was more favourable, having no bairns, than having bairns; and therefore, the clause limiting her in case of no bairns, should multo magis limit her having bairns; the sense of which clause ought to be extended ex præsumptiva voluntate contrabentium, though the words be omitted by the writer; for which also, certain passages were adduced from the civil law in the matter of wills institutione, and substitution of heirs vulgar and pupilar. Duplied, That conditions in contracts are stricti juris, secus in ultimis voluntatibus; that the words were clear, without ambiguity; that the case was favourable for the relict's executor, seeing she was craving no more than what the law would have given her, if the contract had not been; that nothing could take from her the benefit of the law, but her own express paction, and no pretended tacit presumption could do it; and yet, against that presumption it may be thought, and not improbably, that she intended less to herself, having no children, than having children; because, having children, it may be thought, she was careful to have the larger portion for their provision. 2do, It was alleged absolvitor for the whole, because there was a son living after the mother, who, if he had been confirmed executor, her third would have appertained to him, and consequently to his executors the nearest of kin on the father's side: Now, that he was not confirmed executor, was not his fault, and it ought not to prejudge his executor, because he did what he could for the time; but then, there was no commisariot courts, and instruments and protestations were taken for him, of his willingness to confirm, &c. So, that there being a surcease of justice, impedimentum juris quod non potest provideri ne remederi impedito non debet nocere. Answered, That such impediments cannot hinder the ordinary course of law, no more in succession of moveables than of heritage: Now, though an heir had been served and retoured; yea, though he had charged the superior to infeft, yet, unless he had been actually vestitus et sasitus, the heritage does fall, as if he had never been served; even so in moveables, and in confirmation of testaments; and such an impediment being casus fortuitus, it must have its own hazard and event as to the interest of parties, but not to alter the course of law.
