Click here to view a pdf copy of this documet : PDF Copy
A Father having left a legacy, thinking his wife was with child, in these terms, that if his wife should have a male child, the legatar should have the sum of 4,000 merks; and that if she should have a daughter, the legatar should have the sum of 5,000 merks.
The Lords found, that though she had no child, the legacy should be effectual ex præsumpta voluntate testatoris; seeing it cannot be thought, but that he rather intended a legacy for him, if he had no child, than in the case she should bring forth a child; Et in conditionibus primum locum obtinet voluntas defuncti, eaque regit conditiones. L. 19. D. De conditionibus.
1666. July 26.—In the case Scrimgeour and Wedderburn of Kingenny, (mentioned before 18th July), a legacy being to be effectual in that case only, if the testator's wife should not be brought to bed of a man child; it was found, that a male child should be understood a living child; and that homo mortuus and a dead child is nullus in law; and that the legacy should be effectual, though she had been brought to bed of a male child, but dead.
Fol. Dic. v. 1. p. 441. Dirleton, No 18. p. 9. and No 32. p. 14.***Newbyth reports the same case:
Umquhile Major Scrimgeour having only two daughters, viz. Margaret and Janet, makes his testament thus, “I leave Kilgenny and others to be tutors to my two daughters; and if it please God my wife be with a man child, I leave to my said son the sum of, of my said moveables, but if my said spouse shall be with child, and the same shall happen to be female, in that case, I leave 5,000 merks to Alexander Wedderburn of Kilgenny.” He pursuing for payment of his legacy, it is alleged, The legacy is not pure but conditional, if the defunct's wife was with child, and that the said child were a female, and the pursuer cannot subsume that the conditions did exist; whereunto it was replied, That the allegeance ought to be repelled, because the defunct having left a legacy in case his wife was with child of a daughter, he could never be presumed but to have left the legacy in case there was no child; and the will and intention of the testator is chiefly to be looked to in all testaments. The Lords sustained the legacy, and found, that, albeit it was conditionally conceived, yet it resolved in legatum purum ob præsumptam defuncti voluntatem, qua omnes regantur conditiones in ultimis voluntatibus.
