Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. I.
In Provisions to the Issue of a Marriage, wheather the Children succeed per captia, or if the Heir is preferred?
Irvine v. M'Kittrick
1684.
December. Case No. No 7.
Where one was obliged to take rights and securities to himself and spouse in conjunct liferent, and to the heirs and children in fee, the clause found copulative in favour of the children.
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A Woman in her contract of marriage being obliged to convey to her husband what lands should happen to fall to her during the marriage; and he being obliged to take the rights and securities thereof to himself and her in conjunct fee, and to the heirs and bairns in fee; the bairns pursued the mother to denude in the terms of the provision.
It was alleged for the defender; That the clause being copulative in favour of heirs and bairns, the pursuers must serve heir to their father, though the provision would divide amongst them pro rata, which the Lords sustained; though it was replied, That oftentimes conjunctive particles are to be interpreted disjunctive.
Fol. Dic. v. 2. p. 275. Harcarse, (Contracts of Marriage.) No 369. p. 95.*** Fountainhall reports this case:
1684. November 28.—Isobel Irvine and Thomas Hay her husband against Bessie Makittrick in Dumfries, is reported by Redford. The case was, Where a clause in a contract matrimonial did provide what conquest should come by the mother to the heirs and bairns of the marriage, in copulative terms, if they might pursue for it qua bairns, without being heirs, seeing the clause might be exponded disjunctively, and that the Lords had in such cases found they needed not be formally served heirs. Yet it was alleged, Verba in contractibus non debent esse otiosa, sed aliquid operari, and so here the word heirs behoved to import somewhat beyond bairns; 2do, Verba non sunt improprianda sine necessitate, sed propriæ eorum significationi standum est, nisi sensus aliquis inde sequatur absurdus; and so copulative should be taken in its native and genuine signification; et copulata oratio requirit ut verificetur in utroque, et non sufficit adimplere alterutrum, per leg. 129. D. De verb. obligat.; 3tio, Subsequent clauses of this contract mention only heirs, and so explain the first part; and, therefore, the pursuer cannot insist till she be served heir. “The Lords sustained process at the pursuer's instance; but before extracting of any decreet, ordain Isobel Irvine the pursuer to be served heir.” Many of the Lords thought this irregular, and that it was enough she was cognosced a bairn of that marriage without a formal service; and that the word heir was only synonymous and exegetic of bairns.
