Condition, whether to be understood Copulative or Disjunctive.
Dame Rachel Nicolson, Lady Preston, v. Dr George Oswald of Preston
Date: 17 July 1712 Case No. No 40.
A Lady renounced her jointure, with this provision, that if it should happen, the party in whose favour she renounced, to die without heirs male of his body, or to have but one daughter; then, and in either case, the renunciation should be null. The renunciation was found null, upon his dying without an heir male, though he left several daughters.
Click here to view a pdf copy of this documet : PDF Copy
Sir Thomas Hamilton of Preston having infeft Dame Rachel Burnet, his Lady, in an yearly annuity of 1200 merks out of his barony of Preston; in a contract of marriage betwixt Sir William Hamilton, Sir Thomas's eldest son and Dame Rachel Nicolson, his Lady's daughter of a former marriage in the year 1670, Dame Rachel Burnet granted a renunciation of the annuity, containing this clause irritant, viz. If it shall happen the said Sir William Hamilton to die without heirs male of his own body, or to have but one daughter; then, and in either of these cases respective foresaid, the renunciation should be null, and of no avail, strength or effect. Sir William having died leaving no heirs male, but only three daughters; Dame Rachel Nicolson his relict, who was assigned by her mother to the annuity foresaid, pursued a poinding of the ground.
Compearance was made for Dr Oswald, present heritor of Preston, who alleged, That the liferent annuity stood renounced.
Replied for the pursuer; The renunciation is not simple, but conditional and irritated, 1mo, By Sir William Hamilton's dying without heirs male of his body; 2do, By his leaving a daughter; the words, ‘in case he have but one daughter,’ importing if there be but so many as one daughter.
Duplied for the defender; The clause irritant must not be divided into two alternatives, but taken complexly as if it had run thus, “If Sir William die without heirs male, leaving only one daughter, then the renunciation shall be null:” Now albeit Sir William wanted heirs male, he had several daughters, and so cannot be said to have but one; consequently, the irritancy is not incurred in terminis, nor yet in the meaning of parties. The Lady was allowed recourse to her annuity, if Sir William left only one daughter, and not in the case of his leaving more daughters; because, an estate is more incumbered with the, provision of several children, than with the provision of one. This absurdity would follow from taking the controverted clause in a divided sense, so as to infer the irritancy from either the failure of Sir William's heirs male of his body, or the existence of one daughter, viz. esto there had been twenty sons and but one daughter, the second member of the irritancy would have been incurred. Now verba ita accipienda sunt, ut illud de quo agitur magis valeat, quam pereat. Et quoties idem sermo duas sententias exprimit, ea potissimum accipitur, quæ rei gerendæ aptior est.
Triplied for the pursuer; The words must have effect, though the consequence were hard; for ita lex scripta est; and by an old act of Sederunt, in the year 1713, the Lords declared they would interpret irritant clauses according to the express words thereof. And justly, seeing otherwise, contracts would not be the deeds of parties, but the deeds of their successors, and very often of their contradictors or opposites, and at best, of the Judges, who should advise what was most reasonable for the parties to have done and intended, taking their rule of conjecture from the present time and argument, though never so different from the inclination and circumstances of parties at the granting of the deed; 2do, Neither is it absurd to make the irritancy take effect, as the pursuer pleads it should; for the grand-mother, in case of an heir male and no daughters, ceded her jointure out of respect to the family; but secured her return to it in the event of a daughter, that she might be in a condition to provide that daughter; and though there might have been many sons, she did not think it worth her while to look to their provision; because the sons of great families are generally better able to provide for themselves than the daughters, whose station and quality is a burden to them, and makes them miserable if unprovided.
The Lords found, That seeing there was no heir male of the marriage, the renunciation was void and null.
