Scottish Court of Session Decisions

Subject_1 GENERAL ASSIGNATION.
Subject_2 SECT. II.

Relative to Thirlage. - Legacies. - General Clauses in Assignations. - What a General Assignation will carry.

Beatrix Linklatter, Relict of Captain Boswell, Skipper in Kirkaldy
v.
John Boswell, Skipper there

Date: 19 June 1711
Case No. No 11.

A woman in her contract of marriage, disponed to her husband, his heirs and assignees, her whole goods and gear, moveable and immoveable, debts and sums of money, and two tenements, with this provision, That in case of her surviving him without children of the marriage, she should have full power to dispose upon the half of the goods, gear, sums of money, and others contracted on her pat. The Lords found this clause did import, that in the event foresaid, a half of the heritable, as well as moveable subjects disponed, should return to her.

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Beatrix Linklatter having, in her contract of marriage with Captain Boswell, disponed to him, his heirs and assignees, her whole goods and gear, moveable and immoveable, debts and sums of money, and two tenements lying in Kirkaldy, with this provision and reserved faculty, “That in case of her surviving him without children of the marriage, she should have full power to dispose upon the half of the goods, gear, sums of money, and others contracted on her part;”-—she pursued John Boswell, as representing the Captain his father, to have it found and declared, that she had power to dispose of the tenements foresaid, as well as of the moveables disponed by her to her husband.

Alleged for the defender, 1 mo, The general words in the clause of disposal, and others contracted on her part, cannot be extended either to others of a greater value than the particulars mentioned, or to lands and houses which are of a different kind from the particulars expressed in the clause, 19th November 1680, Dalgarno against Tolquhoun, voce General Discharges and Renunciations. 2do, The meaning of parties is to be drawn from the strain of the writ; so that the pursuer, having disponed her houses by one clause, and her goods, gear, and sums of money by another, and the clause containing the faculty beginning with the same words, goods and gear, &c. as the dispositive clause of the moveables, it can be extended only to moveables. 3tio, A faculty or power to dispose of lands is not ordinary, and therefore not to be presumed.

Replied for the pursuer, 1mo, If these words, and others contracted on her part, did not comprehend all heritable right disponed by her to her husband, they had been superfluous; for all that was moveable came under the foregoing terms of goods and gear, and sums of money. Besides, seeing nemo præsumitiur donare, especially to make an excessive gift; and a general clause, subjoined to several particulars in a discharge, can be extended only to others of the same nature or value, because a discharge, except in so far as an onerous cause appears, sapit naturam donationis; therefore the pursuer's gratuitous conveyance of her whole estate, heritable and moveable, to her husband, reserving to herself but a faculty, in an uncertain event of her surviving him without children, to dispose of the half thereof, must be taken in the most ample and favourable sense the words can bear, and be understood to comprehend the half of all the particulars disponed, whether heritable or moveable. Again, the goods, gear, and sums of money disponed, were of greater value than the lands, and so may naturally, without any extensive interpretation, fall under the general of others whatsoever contracted on her part, 2do, It is frivolous to pretend that the faculty should be extended only to moveables, because it begins with the words, goods and gear, &c. in the same manner as the clause disponing the moveables. And, 3tio, It is most ordinary to grant faculties and powers to dispose of lands and other heritable rights.

The Lords found, That the clause providing that the pursuer should have power to dispose of the half of the goods, gear, sums of money, and others contracted on her part, doth import a return of the half of the heritable subjects disponed by her to her husband, as well as moveables; and therefore found and declared, that she hath right to the half of the houses disponed by her in her contract of marriage.

Fol. Dic. v. 1. p. 339. Forbes, p. 507.