Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Helen Hunter and Patrick Johnston v. Sir Thomas Moncrieff of that ilk
Date: 12 July 1710
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Hunter and Johnston against Sir Thomas Moncrieff. By contract of marriage in 1661, betwixt the said Sir Thomas and Bethia Hamilton, she is provided to the liferent of 28,000 merks of principal sum, and, in case of no children, to the half of the conquest; and thir provisions are declared to be but prejudice to her of the half of the moveables. She being the first deceaser, without any children, Helen Hunter, her niece, and nearest of kin, confirms herself executor to her, and, with concourse of Patrick Johnston, her husband, pursues Sir Thomas Moncrieff of that ilk, for the half of the moveables, debts, and sums of money he had at the time of his first lady's death, extending to a great sum, as falling under her aunt's communion of goods, by the reservation in her contract of marriage, the same falling under a bipartite division, by the dissolution of the marriage without children.
Alleged for Sir Thomas,—That any interest his wife's nearest of kin could pretend in his goods was fully discharged by herself; in so far as, ten years after the marriage, in 1672, when Sir Thomas's fortune and estate was much increased, there is a second contract entered into, innovating the former; and, lest it might be pretended to take advantage of her, Mr Alexander Hamilton, her own father, and Mr James Hunter, her brother-in-law, are express consenters, whereby she is provided to the manor-place of Moncrieff, parks, and orchards, and to 2000 merks per annum of liferent; and this she accepts in full contentation and satisfaction to her of all farther liferent, terce, or third, and of all she can ask or crave, either moveable or heritable, by her contract of marriage, or any other manner of way whatsomever; and thereby renounces all further liferent, terce, or third; upon which second contract she was infeft in the lands of Moncrieff, and so has clearly excluded herself, and all her nearest of kin, from any share or interest in Sir Thomas's moveables.
Answered,—It is acknowledged that the clause founded on excluded herself, in case she had survived Sir Thomas her husband, but is noway calculated for the case that truly existed, of her deceasing before him; for her nearest of kin's interest is neither renounced, extinguished, or discharged by that second contract: neither does her accepting the new jointure renounce their claim, but that event is wholly unprovided for, and so casus omissus habendus est pro de industria omissa, or her acceptance is only declared to be in satisfaction to herself; and if it had been designed to exclude her executors, it behoved to have been framed and conceived in thir terms,—that she renounced any tiling could fall either to herself, in case of her surviving her husband, or to her executors in case she happened to die before him; and the clause not running in thir terms, it is impossible, without subverting our fixed styles, to make the one case to comprehend the other, where it is not expressed. And the clause has an exception of what should fall to her by the decease of her father; and there being no exception in favours of her executors, it is plain there was no design to exclude them: for exceptio jirmat regulam in casibus non exceptis.
Replied,—All this reasoning is sophistical, and downright contrary to the design and meaning of the parties-contractors; which was plainly to innovate the first contract, and substitute a new more ample jointure in place of the former, which is as fully renounced as words can make it; and it is absurd to common sense to think that Sir Thomas Moncrieff, who was so anxiously careful to prevent disputes betwixt his relict and his heir, would leave himself exposed to be attacked to divide his moveable estate, and give [one half] of it to his wife's executors in his own lifetime, and that he would put them in a better condition than his own wife. That he would exclude her from any part of his moveables, and yet leave himself open to be harassed by her executors, is such a wild imagination as could never enter into a rational man's head. And though the clause does not nominatim exclude the executors, yet verba non sunt captanda nee Judaice interpretanda; and what other sense can these words of “her renouncing all right any manner of way” admit, but to secure Sir Thomas in omnem eventum, and to be a final settlement and total renunciation.
The Lords found the pursuer, as executor and nearest of kin to Sir Thomas's first wife, had no interest in any part of his wife's moveables, but was secluded by the second contract-There was a second point started by the pursuer, but, not being fully debated, was not considered by the Lords at that time; and it was this, that the second contract being entered into stante matrimonio, it was donatio inter tiram et uxorem, and could not impair nor restrict her matrimonial provisions; as she outlived her husband, she would have fallen to have the half of his moveables, and the half of his conquest, which would mightily exceed her 2000 merks of jointure provided to her by the second contract; and her father's consent could not prejudge her from reclaiming; and craved to be reponed against such evident lesion.
Vol. II. Page 585.
1710, July 29.—An Appeal to the British Parliament was given in by Johnston of Garmoch against the interlocutor of the 12th current, mentioned supra, finding the second contract passed betwixt Sir Thomas Moncrief and his first lady, cut off any pretence her executors had to a share of his moveables or conquest.
