Margaret Crawford and Cochran her Husband, v. Hogg
Date: 24 December 1746 Case No. No 30.
A wife, in her contract of marriage, renounced all she could claim thro' her husband's decease. - She predeceased him. - Found, that her provisions were in lieu of all claims, whether she survived or predeceased her husband; therefore, her nearest of kin could not claim a share of the goods in communion.
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In the contract of marriage between William Hogg, senior, merchant in Edinburgh, and Anna Crawford, William Hogg became bound to employ 2400 merks of his own money, together with 7000 merks contracted to him in tocher, upon land, or other security, to himself and his spouse in conjunct fee, and to the children of the marriage; and after certain other provisions with respect to the conquest, and to the houshold furniture, in the different events of children, or no children of the marriage, there followed a clause of acceptance in these words:
“And which she, with consent foresaid, hereby accepts of in full satisfaction of all further liferent, terce, moveables, or any other manner of way through her said promised husband's decease.”
Anna Crawford predeceased her husband; and, after his death, a process was brought before the Commissaries of Edinburgh, against Mr William Hogg junior who succeeded to him, at the instance of Margaret Crawford, sister and nearest of kin to Anna Crawford, with concourse of her Husband, to account to them for the half of the moveable estate, which belonged to William Hogg senior at the death of his wife.
And the defender having put his defence upon the foresaid clause of acceptance in satisfaction, the Commissaries “having considered the contract of marriage, and ample provisions therein in favour of Anna Crawford, sustained the defence, and assoilzied.”
Whereof the pursuers having complained by bill of advocation, the Lords, on report, ‘Remitted to the Ordinary to refuse the bill.’
The doubt lay on the construction of the last words of the clause, “in and through her husband's decease,” which were pleaded by the pursuers to limit the acceptance to that event. But the Lords considered, that wherever competent provisions are made for the wife, and accepted of in satisfaction of all further liferent, terce, moveables, &c. such provisions are always intended by the parties to be in satisfaction of all claim which the wife, or her nearest of kin, might have by the provision of law, whether she survive or predecease her husband; and that any dubiety, arising from the terms of such accepting clauses, is solely owing to the inaccuracy of the framer of the settlement; 2do, That the clause in the contract includes both events, of her predeceasing, and of her surviving her husband: She renounces all farther claim she can have to moveables; and the claim of the nearest of kin, when she predeceases, is still a claim in her right. And as to the last words of the clause, “or any other manner of way through her said promised husband's decease,” if once it is established that the renunciation of moveables in general comprehends both events, these words were superfluous, and may probably have proceeded from the ignorance of the writer, and, so far from implying any intention to restrict, may rather have proceeded from an over anxiety to comprehend every claim. Decisions were also referred to, where, in cases pretty similar, though not precisely the same, the Lords had found the renunciation to comprehend both events, as Boyse contra Sandilands, July 12. 1701, Lord Fountainhall, v. 1. p. 119. voce General Discharges; and the late case of Thomson contra Laurie, February 19. 1743, C. Home, p. 373. voce Husband and Wife.
Fol. Dic. v. 3. p. 128. Kilkerran, (Husband and Wife.) No 11. p. 264.
