Subject_1 GENERAL ASSIGNATION. Subject_2 SECT. II.
Relative to Thirlage. - Legacies. - General Clauses in Assignations. - What a General Assignation will carry.
Fairholme v. Kirkwood
1687.
February. Case No. No 7.
A man granted to his wife, in augmentation of her jointure, an assignation to all goods and gear, debts and sums, lands and heritages.
Tho' there were no children of the marriage, the Lords found, that such a disposition only carried right to the moveables and the liferent of the heritage.
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John Kirkwood merchant, for implement of the contract of marriage betwixt him and Rebecca Fairholme, his wife, and for augmentation thereof, having assigned to her all goods and gear, debts, sums of money, rents of lands, and other heritages, and others whatsomever, as well not named as named, which should happen to pertain and belong to him the time of his decease; providing that he should have a child surviving his wife, that the disposition should be null; and, in case there were no children, then he dispones to her a shop in the Luckenbooths in liferent, and to James Kirkwood, his nephew, in fee. And the said John Kirkwood having deceased without children, Rebecca Fairholme, as having right by the foresaid disposition, pursues a declarator against the said James Kirkwood, the nephew, for declaring that she has right to the property of the shop in the Luckenbooths; and that he, as representing his uncle upon the passive titles, ought to be decerned to obtain himself infeft therein; and, being infeft, to dispone the shop in her favours. Alleged for the defender, That this being an assignation omnium, bonorum, which belonged to the said John Kirkwood the time of his decease, it was a donation mortis causa, and so could not be extended to lands and heritages; and, being an assignation only to debts and sums of money, and not conceived by way of disposition, it will only carry the right to the moveables; but cannot be understood to comprehend lands which are only conveyed by way of disposition; and being for implement of the contract of marriage, by which she was provided to a liferent of a part of the tenements, cannot be understood to comprehend the fee and property of the tenements; and albeit it bear likewise to be an augmentation of her provision by the contract, yet that could only be understood to be in augmentation of the liferent, but not to carry the fee of the lands; arid the last part of the assignation does explain the meaning thereof; because it was provided, that if there were no children, his wife was to have the liferent of the two shops, over and above what she is provided to by her contract of marriage; which clears that there was no more designed, but only that the wife should have the right of liferent. Answered, That albeit the assignation be of all the goods, gear, debts, sums of money, rents of lands and others belonging to the husband the time of his decease; yet, the mentioning of his decease does not make donatio mortis causa, and to be of the nature of a legacy, but is donatio inter vivos to take effect after the granter's decease. And albeit ordinarily assignations are of moveables, and disposition being verba synonima are pares termini in jure, and have the same effect as to the conveying the property of the thing assigned, and this being a general assignation of all goods and gear, debts, and lands and heritages, it is evident that the husband designed that the pursuer, his wife, should have all that belonged to him, except the fee of the shop, which is provided to his nephew, and his wife was only to have the liferent; and that clause is so far from restricting the preceding general clauses, that it rather explains and confirms them, as being an exception from the general clause, seeing exceptio firmat regulam in non exceptis. The Lords found the disposition does not carry the right of the moveables and the liferent of the crops, and declare accordingly.
Fol. Dic. v. 1. p. 339. Sir. Pat. Home, MS. v. 2. No 868.*** Harcarse reports the same case:
A husband having assigned to his wife, all debts, sums of money, goods, gear, lands, tenements, houshold plenishing, gold, silver, &c. he should have, failing children the time of his decease; and, having died without children, his relict claimed right to a tenement of land by virtue of the assignation.
Alleged for the Heir; That the assignation containing no obligement on the defunct or his heir, to dispone, nor any dispositive clause of heritage, the tenement was not conveyed thereby. 2do, The words ‘lands and heritage,’ seem to be inserted ex stylo, without any special design; for, in subsequent clauses, goods and gear, and not lands, are particularly repeated; and it is not to be presumed, that the defunct intended to cut off his heir altogether. 3tio, The words, ‘that he should have, the time of his decease,’ import a testamentary deed, whereby no heritage can be conveyed.
Answered; Though the deed be not formal, with clauses for conveying heritage, it implies an obligement on the defunct, which his heir cannot quarrel. 2do, That the word was industriously inserted, is cleared from a posterior clause, whereby the defunct provides the fee of a shop to the heir, and the liferent of it to his wife, and exceptio firmat regulam; for that had been superfluous, had the defunct intended to leave all his heritage to his heir, 3tio. These words, ‘the time of his decease,’ import no testamentary act, but are usual in deeds inter vivos, whereby the effect of the obligement is only suspended till then.
“The Lords restricted the assignation to the moveable estate, and a liferent of the shop.”
