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.
Ewing v. Miller
Date: 1 July 1747 Case No. No 51.
A person in a post-nuptial contract of marriage, burdened his heir male with provisions to his daughter or heir-female. Found, that the term heir-female was mere exegetic, and did not comprehend a son's daughter.
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In a post-nuptial contract in August 1699, between Thomas Whitehill, alias Ewing, of Keppoch, and Sarah Gordon his spouse, Whitehill obliged himself to provide and secure the heir-male of the marriage in the fee of the L.5 land of Keppoch, &c.; and in case there should happen to be no heir-male of the marriage, but one daughter or heir-female, he bound himself and the heir-male succeeding to him in the said lands to pay to the said daughter or heir-female 3000 merks; and in case there should happen to be two or more daughters (without repeating the exegetic or heirs-female) to pay to the said daughters L. 3000.
Of this marriage there were two sons and one daughter, all of whom predeceased the father without male issue; but the second son left a daughter Sarah, and the daughter left a son.
The father Thomas being under no restraint as to the settlement of his succession by the failure of the issue male of his body, settled his estate on Thomas Miller his grand-child by his daughter, and gave a bond of provision for for 1000 merks to Sarah the daughter of his second son. With this, Sarah not contented, pursued the disponee Thomas Miller for the sum of 3000 merks, to which she laid claim as the daughter or heir-female of the marriage, to whom 3000 merks was provided by the contract of marriage; for, though not the immediate daughter, she was the only daughter or heir-female existing at the father's death, and as filii appellatione omnes liberi intelliguntur, so in many cases, particularly that of the tailzie of Kinfawns, the term daughter was extended to grand children. See Tailzie.
But the Lords found, ‘That the provision in favour of the daughter of the marriage did not comprehend a son's daughter, and assoilzied.’
The will and intendment of parties is the governing rule in all questions of this kind; and though in settlements of estates on the daughters or heirs-female of a marriage, daughters of a son are understood to be comprehended, yet in provisions to daughters of a marriage on failure of heirs-male, as the addition of heirs-female is frequently used, though improperly, as in law-stile there can be no heirs-female where there is an heir-male of the same marriage, it is considered as no other than synonimous with the word daughters; and the circumstances of the case were thought to confirm that construction.
Fol. Dic. v. 3. p. 124. Kilkerran, (Provisions to Heirs and Children.) No 9. p. 462.
