A clause in a contract, that a part of the tocher should return to the father, in case his daughter died without children of the marriage, was found to infer the return, though the children were born, but died without issue before their mother.
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By contract of marriage betwixt the Laird of Glenhoove and Jean Oswald, it is provided, “That in case the said Jean depart this life without bairns lawfully procreate of the marriage, in that case the husband was obliged to pay 2000 merks of the tocher to the father;” whereupon Oswald, as having right to the sum, pursues Mr Robert Boyd, as representing Glenhoove, to pay the sum, who alleged absolvitor, because he offered to prove there were bairns procreate of the marriage.—It was answered, non relevat, unless they survived their mother; this being in effect the common clause, si sine liberis decesserit, which takes place if the children survive not; and albeit in some cases the existence of the children purifies the condition, yet such clauses ought always to be interpreted according to the interest, and the presumed will and design of the contractors, which can be no other in this case, but that the wife's father provided a return to himself of a part of the tocher, if his interest of the family failed by his daughter's having no issue, which holds alike as if there had been no children procreate, or whether they died before their mother; and though the clause mentions children procreate, yet that is only adjected to restrict the provision to the children of the marriage.
The Lords found, That the survivency, and not the existence of children procreate of the marriage, was understood; and therefore found the same to return, seeing the children procreate died without issue before their mother.
Fol. Dic. v. 1. p. 187. Stair, v. 2. p. 771.*** Fountainhall reports the same case, giving the defender the name of Somerville:
One is pursued to restore 2000 merks of tocher on this ground, that the contract of marriage bore this clause, “in case the wife should decease without any children lawfully procreate of her body, then 2000 merks of the tocher should be repaid by her husband and his heirs to the wife's heirs;” but ita est, they subsume she had no children that survived herself; and so the case existed, and the condition was purified. Alleged, There were children procreate of the marriage, and they lived seven years after the dissolution thereof, which happened by the husband's decease, and so she not having died without children, there was no ground for seeking back the said 2000 merks of the tocher. Replied, This condition si sine liberis decesserit, non respicit tempus præteritum, but only the present time when she deceases; and seeing she had no children who outlived her, there was clearly place for restitution of the tocher. ‘The Lords found there was room for returning the said 2000 merks of tocher, since she died without children surviving her.’ This was done to confirm Dumfermline's interlocutor against Lord Almond, upon which the appeal was given in, in January 1674; though the word in that case was issue, and is of a more general signification than the word children; for it extends etiam ad nepotes aliosque posteros.
