Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Agnes Sandilands
v.
Rachel Sandilands

Date: 27 January 1680

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Bailie Sandilands, in the contract of marriage of his daughter, Agnes Sandilands, provides her with a tocher; and the contract contains this clause, That she shall also be a bairn of the house, and have her share with the other bairns of the family. And, in the contract of Rachel Sandilands, he contracts with her a tocher, which she accepts, in full satisfaction of her portion natural and bairn's part of gear, and all that she can succeed to by the decease of her father, any manner of way. The bailie having died intestate, Agnes and Rachel contend, before the commissaries, for preference,—who should be executor dative; and the commissaries did prefer Agnes, and did exclude Rachel, in respect of the foresaid clauses in her contract of marriage. Rachel raiseth reduction, on this reason:—That the commissaries committed iniquity in excluding her; because where there are more co-heirs or bairns, if all of them should accept tochers in full satisfaction of all they could succeed to by their father's death, that would exclude any of them to succeed, either in heritage or moveables; because, it being a clause in their father's favours, renouncing their interest to him, it returns back to them by his death. For none would pretend that his succession would thereby become nullius, or as bona vacantia to belong to the king; nor could it belong to any other relation or agnate of the father, seeing the further degree can never succeed while there is a nearer. And, therefore, Rachel's acceptance, “in satisfaction of her,” &c. though it had borne an express renunciation of her father's succession, it could operate no more, but that her father might have freely disposed by nomination, assignation, or legacy, of his dead's part. But, not having so done, Rachel's part must return to her; especially seeing Agnes returns to be a bairn of the house with the other bairns, which must bring in Rachel, there being no other bairn but these two: and, though there were others, yet Agnes, being a bairn, could only give her right to the bairn's part, but not to [the] dead's part; from which either party is excluded by the tocher received.

It was answered for Agnes, That the reasons of reduction are nowise relevant; for, though it be true, that, where all the children renounce their interest in the father's succession, he not having disposed thereof, it returns to them all,—yet that holds not where some renounce, and others not; for then the renouncer's share accresces to those who renounce not, as in this case. And albeit, at the defunct's decease, there were no bairns, beside the heir, but these two; yet, the time of Agnes her contract, there were other bairns who died before the father. And the clause in Agnes's favours, “to be a bairn in the house,” by the conception thereof, extends not only to the bairn's part, but to the dead's part; and, therefore, Rachel's renunciation excludes her, and makes the whole executry to befal to Agnes.

The Lords sustained the confirmation of Agnes; and found, that by the acceptance of the tocher in Rachel's contract, “in full satisfaction,” &c.—not being in Agnes's contract, but Agnes being provided to be a bairn in the house, and no relict having survived,—that the whole executry of the defunct accresced to Agnes.

Vol. II, Page 748.