By a clause in a marriage contract, a provision is stipulated to a daughter, in the event of no male issue of the marriage. The estate was forfeited in the person of the second, and only surviving son. The provision was found not to take effect.
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In the contract of marriage betwixt James Lord Drummond and Lady Jean Gordon, anno 1706, the estate of Perth is provided to the heirs-male of the said marriage; whom failing, to Lord Drummond's heirs-male of any other marriage; whom failing, to the heirs-male and of tailzie contained in the infeftments of the estate. And the contract contains the following clause in favour of daughters:
“And seeing the Earldom of Perth is tailzied to heirs-male, so that if there be daughters of the said marriage they will be secluded from the succession; therefore the said James Lord Drummond binds and obliges him and his heirs to pay to the said daughter or daughters the sums of money following, viz. if there be but one daughter, the sum of 40,000 merks; if two, &c. to be divided amongst them as their father shall think fit; obliging him to pay the said respective sums to the daughters at their ages of 18 years complete, or marriage, which of them shall first happen after the dissolution of the present marriage, with annualrent; and, in the mean time, to educate and entertain the said daughters.” It is declared “that these provisions shall be in satisfaction of portion natural, bairns part of gear, and other benefit whatever which the daughters as heirs of line, or any other manner of way, may claim through the decease of their father and mother, or as heirs of line to any of their predecessors.”
There being two sons and one daughter of this marriage, the estate was forfeited to the Crown by the attainder of the youngest, to whom the succession ‘opened by the death of his elder brother’. Lady Mary the daughter put in her claim for the 40,000 merks provided to her by the said contract of marriage. The answer was, that it is extremely unusual to provide daughters in a contract of marriage, unless where, by the defect of the male issue, the estate goes to a collateral heir-male: That in all cases where a provision is intended for the younger children of a marriage to take place in all events, no distinction is made between males and females; nor is there any reason for making a distinction: That, in the present case, the inductive cause of the provision being, that the estate was tailzied to heirs-male, and the provision itself being to females, make it evident that the provision was only intended to take place failing issue male of the marriage; and therefore, that this must be understood a conditional provision, which is not purified by the existence of the condition.
It was replied for the claimant; That the provision being clear, and conceived in absolute terms, is the best evidence, or rather the only legal evidence, of the intention of the granter; and whatever may be one's private conviction, judges cannot take upon them to give another sense to words than they naturally bear; especially when the natural import makes a rational and consistent deed, though a little out of the ordinary channel. For if judges were to give themselves such a latitude, they might come at last to make every man's testament for him, in place of interpreting it.
It carried by a narrow plurality to sustain the claim.
Reversed in the House of Peers.
In this case, it was certainly not the intention of the contractors to provide any sum to daughters, if the estate should be inherited by a son of the marriage. And words beyond intention are not binding in law.
