Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. VIII.
If presumed to comprehend legal provisions and undelivered bonds of provision.
Executors of Magdalen Boyes v. Mr Patrick Sandilands
Date: 12 July 1701 Case No. No 31.
A woman, in her contract of marriage, discharged her husband of any thing that could belong to her as relict, in case she should survive him. She having died before him, in an action against the husband for her third, the Lords extended the discharge to comprehend both cases.
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Davidson of Cairnbrogie, and other Executors of Magdalen Boyes, late spouse to Mr Patrick Sandilands of Cotton, pursue the said Mr Patrick for a share of all the moveables he had the time of the dissolution of the marriage-communion by her decease. The defence was, she being a widow, and opulently provided by her first husband, when Cotton came in suit of her, she was so well satisfied with the marriage, she declared she would have no jointure nor liferent provision by him, ‘seeing he had children by a former wife; and therefore before the marriage, she gave him a free discharge of any thing that could belong to her as relict, in case she should survive him, by law or any other manner of way whatsoever. Answered, The discharge evidently relates to an event which has not existed, viz. his deceasing before her, that then she discharges and renounces the benefit of any jointure by him; though even in that case it might have been pleaded to be donatio inter virum et uxorem, on the matter being after the intervention of the sponsalia et nuptiarum repromissio; but that is not the case; for there is not one syllable in the same, discharging her share in his moveables in case she die before him; and so the discharge being taxative cannot be extended de casu in casum, seeing casus amissus habetur pro omisso per industriam, Replied, The mentioning her survivance is not restrictive nor conditional, but demonstrative; and these words in the discharge, “or any other manner of way whatsoever,” are general and full, comprehending all events; and in the interpretation of dubious clauses, expositio est facienda contra preferentem qui potuit apertius dicere; and it is absurd to think she would have provided more carefully for her executors than for herself; and seeing she has discharged in the event of surviving her husband, much more will it militate against her executors, she being the first deceaser, especially seeing she made no testament or legacy, knowing she had no power; and if she had been interrogated, “What if you die first, is it your intention that your nearest of kin claim a third of Cotton's moveables?” it is plain her answer would have been, They are to have no more right than I myself would have if I happen to be the longest liver, The Lords extended the discharge to comprehend both cases, and assoilzied. Judges oft-times make testaments and discharges different from what the parties designed, which must necessarily fall out where ambiguous clauses come to be interpreted.
