Right of Electing, with Advice and Consent. - Discharge of all Claims against a Predecessor's Estate. - The term Heirs Female. - Provision to Children in full of all Claims. - The term Children in a Testament.
Competition, Creditors of Redhouse with Thomas Glass, &c
Date: 15 June 1743 Case No. No 50.
A man entailed his estate to heirs-male, making a provision to daughters and heirs female. Having a son, it was contended a daughter had no claim, not being heir female. Found, that heir-female meant only daughter.
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Captain Hamilton of Redhouse tailzied his estate to——Hamilton his son, and his heirs-male, &c.; and, by a clause in the deed, he provided, “That in case there shall be daughters, and heirs female procreate of his body, alive at the time of his decease, then, and in that case, he obliged his heirs-male and tailzie therein specified, to pay the said daughters and heirs-female, ane or mae, 10,000 merks, to be equally divided amongst them after his decease.” The Captain died leaving one son, and a daughter named Helen, who was married to Mr Adam Glass. In the ranking of the creditors on this estate, Helen's children claimed to be ranked for this 10,000 merks provided by the foresaid bond of tailzie, to be paid to the daughter, or heir-female, procreate or to be procreate of Captain Hamilton's body.
Objected for the Creditors, That the provision of 10,000 merks did obviously appear, from the scope of the deed of entail, to have been allenarly intended to take place in favour of such daughter as was vested with the character of heir-female of Captain Hamilton's body, which could never apply to Helen Hamilton, the Captain's daughter, as there was one son procreate of the Captain's body, who survived his father; and that it was only meant to be effectual, in case they were excluded from the succession to the lands of Redhouse by a collateral heir-male, in virtue of the foresaid tailzie, as a recompence to the daughters or heirs female.
That, through the whole of the deed, the persons entitled to this provision are uniformly designed ‘daughters and heirs-female,’ conjunctively; which, in other words, imports that the provision was not intended for the daughter qua such, but under the legal character of ‘heir-female;’ so that both characters must unite one person before the provision could be claimed. In some cases, the words, ‘heirs-female of a man's body,’ have been construed as tantamount with daughters; but, in the present question, the whole circumstances do concur to enforce the legal and proper construction of these words. It was further observed, that, by the Captain's contract of marriage, the fee of the estate stood provided to the heir-male of the marriage; and, as he seemed very anxious to preserve the succession in the male-line, it was not presumeable he meant to burden his son with so exorbitant a provision to an only daughter, especially considering that the whole yearly rent of Redhouse was no more than L. 1000 Scots at the date of the tailzie, and even that greatly burdened. In a word, it is plain the Captain only intended this provision as a satisfaction to his daughters, in the case of the estate's going by them to a collateral heir-male; as it is likewise evident from this, that he made no provision for younger sons; which, it is natural to suppose, he would have done at the same time, if he had intended to provide daughters qua such.
Answered: As it was admitted, that, in some cases, the words, ‘heirs-female of a man's body,’ have been construed as signifying the same thing with daughters, when, from the circumstances of the case, such appears to have been the intention of the donor, that the daughters should take, though, properly speaking, they were not ‘heirs-female,’ it was plain, that ‘heirs-female’ is an expression frequently used inaccurately in contracts of marriage, and other writings, and often synonimous with the word daughters; and it is certain, that, generally speaking, unless the contrary appear by other circumstances, when a provision is made to daughters and heirs-female, the intention is that the same shall go to daughters. It is true, that, when a provision is granted under two characters, clearly understood, and expressed by words having a certain and determinate meaning, both characters must concur; but yet certain it is, that the word and is sometimes construed disjunctive, and not copulative, and is taken to be the same as or; and therefore, when two words are joined together, whereof the one has a determined meaning, the other a vague and undetermined one, in order to express a creditor in a sum, though they are tacked together by an and, the natural construction is, that the one is exegetic of the other; and that the certain meaning of the one fixes the vague and undetermined signification of the other, so as to be exegetic and not taxative. Neither was it an irrational deed in the Captain, as he gave not only his land-estate to his heir, but likewise his whole moveables, particularly a bond for 8000 merks; and, if there had been ever so many daughters, they would have got no more, though in the event there happened only to be one who had a right thereto: And, if the intention had been that the provision should only be payable by the collateral heir-male, the sum would have been made payable upon the succession's opening to him, instead of which it is made payable upon the Captain's decease; which shows he meant the provision should be effectual, even though he left a son, in which case the daughters could not be ‘heirs-female’ in a proper sense.
The Lords found, That, by the conception of the clause in the tailzie, where-by the heirs of entail were obliged to pay to the tailzier's daughters and heirs-female, one or more, the sum of 10,000 merks, Helen Hamilton, the only daughter of the maker of the entail, was entitled to the provision, in the event which happened of the tailzier's own son succeeding to the estate, as well as she would have been entitled to the said provision if the estate had devolved upon the collateral heirs of entail.
N. B. The above interlocutor was reclaimed against.
