Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Katharine Thomson
v.
Gilbert Lawrie

Date: 13 December 1743

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This case is reported by C. Home, (No. 229, Mor. 6142.) Lord Kilkerran's note of it is as follows :

“On report, the Lords repelled the defence by the Preesident's casting vote ; for sustaining, Arniston, Dun, Monzie, Leven, Balmerino, Kilkerran ; for repelling, Royston, Drumore, Haining, Strichen, Elchies, Murkle.

“The reasoning was to the following purpose: The taxative words, ‘by and through the decease of the said Gilbert Lawrie,’ were no doubt very straitening ; and it is no less true, that Judges are not to allow themselves the liberty of judging from intention, except where there are words to found that argument; and here the above taxative words do rather exclude the intention which the defender here pleads for.

“On the other hand, there are here other words, which in their proper meaning do directly respect the case that has happened; viz. these words,' and all others, she, her executors, or nearest of kin could claim ;' and all the question is, whether these words are to be in effect left out, because of the following words, by or through, &c.; which, as they stand, are taxative of all that went before; or if these words, she, her executors, or nearest of kin, &c., must still have their effect, notwithstanding of the taxative words, and of the writer's omitting the words or otherways, when every body must in their conscience be convinced the intention was to exclude her executors in case of her predecease, as well as her own claim in case of her husband's predecease.

“I say the question comes to this, whether these words, her executors or nighest of kin are in effect to be left out; for though it is true that where the husband predeceases, if she neglect in her own time to prosecute her claim, her executors may do it, yet it is absolutely unprecedented in style to exclude the claim of her executors, except where the exclusion is designed to comprehend the case of her predecease, which is a convincing evidence of the intention. 2do, In reality the expression, “which her executors or nighest of kin can claim,” does only properly apply to the case of her predecease, for in that case, indeed, her nighest of kin have, as such, a direct claim; whereas in case of the husband's predecease, she, and not they, has the immediate claim, to which case therefore the expression here does not in strict propriety apply.

“February 18, 1743.—The Lords altered their former interlocutor, and found the clause renounced not only the wife's claim in case of the husband's predecease, but also her executors' and nighest of kin's claim in case of her predecease.

“December 13, 1743.—The Lords adhered, without one word of reasoning, the question being barely put by the President to the vote. It being late in the day when the bill and answer was moved, and that the interlocutor on the report had proceeded upon a full reasoning.”