Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Elizabeth Lundy v. The Executors of Lundy of Spitle
1672.
June26, and
July11.
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June 26, 1672.—Lundy of Stratharly, marries his sister upon Lundy of Spitle: in the contract of marriage there is a clause, that in case the woman dies without heirs of the marriage, then, and in that case, L.2000 paid by her brother for her in name of tocher, shall return again to her brother, his heirs and assignees, or else the equal half of the moveables it shall happen him and her (viz. the two married persons) to have the time of her decease. The woman dies without children of the marriage, whereupon Stratharly, having long ago paid the tocher, assigns the contract to Elizabeth Lundie his daughter, who pursues a declarator, that the case wherein it was provided and agreed that the tocher should return, has existed, and therefore concludes repayment and repetition of the tocher.
Against which it was alleged, that, by the contract, there was something more required to make the tocher return to the wife's brother beside her dying without issue, viz. that her husband outlive her; so that there are in effect two conditions annexed to the provision anent the returning of the tocher: 1mo, That there be no children; 2do, That she die before her husband. Though the first existed, the second did not; but, to the contrary, she survived her husband many years. And that this is the whole scope of the contract, the true interest of the parties, and the real meaning of these words in the last clause anent the half of the moveables: and to interpret it otherwise were neither just nor equal; for what could be more contrary to sense or reason than for a woman to brook and liferent her husband's whole estate, and yet his executors to be liable in refusion of the tocher? does not this choke that rule of natural equity, Qui habet incommodum debet et habere commodum? See the debate more fully in the informations.
The Lords found, that the tocher was not to return in eum solum casum, whereby the wife should die without issue, but also in casum that she died before her husband: which not existing by the parties' meaning, (as the Lords explained it,) repetition ceased, and therefore the defenders were assoilyied.
A man who considers the cause narrowly, would think it very clearly favouring the pursuit, and the allegeances on the contrary to be in comparison only leves vanæ et inanes conjecturæ: but standum est judicio dominorum, who have thought otherways. Vide supra, No. 321. in fine, [1aird of Balnamoon against Macintosh, 9th February 1672.]
Advocates' MS. No. 351, folio 136.
1672. July 11.—In the action, marked supra, betwixt Hamilton and Lundie, at the No. 351, the pursuer having produced a letter under the said Lundie of Spitle his hand, whereby, according to the agreement contained in the contract of marriage, he declares the tocher shall be repaid, if there exist no bairns of the marriage; the Lords, upon this, found his intention has been to pay back the tocher in that sole case of not existence of children, and therefore sustained the declarator.
