A person settled on his wife a jointure, and in case of no children, a greater. Being attainted, his wife was found entitled to the larger jointure, because, though he had children, they could not succeed to him.
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The estate of Cromarty standing entailed in favour of heirs-male, the Earl in his contract of marriage, anno 1724, “became bound, in case of children of the marriage who shall succeed to, and enjoy the estate, to infeft his lady in a liferent locality of 40 chalders victual; and in case there be no children of the marriage who shall succeed to and enjoy the estate, he became bound to make the said locality 50 chalders.” To which there is added the following clause:
“That if, at the dissolution of the marriage, there be children who shall succeed to, and enjoy the estate, but who shall afterwards decease during the life of his said spouse, she, from that period, shall be entitled to 50 chalders, as if the said children had not existed.”
The Earl of Cromarty being forfeited in the year 1745, having issue both male and female, a claim was entered by his lady for her jointure of 50 chalders, to take place after her husband's death. Objected by his Majesty's Advocate, That she is entitled to 40 chalders only, there being sons of the marriage, who, but for the forfeiture, would succeed to the estate. Answered, That taking the words of the contract strictly, according to common law, the claim must be restricted to 40 chalders, because it cannot be said literally that there are no children of the marriage who can succeed to, and enjoy the estate. But here the forfeiture is plainly a casus incogitatus, about which the parties interposed no will; and equity dictates, that the lady ought not to suffer by this oversight, but that the same ought to be supplied by the Court, provided it can be made evident what would have been the will of the parties, had the event been foreseen. About this there can be no doubt; for, if the Earl was willing to give a jointure of 50 chalders to his spouse, in case his brother or his nephew should succeed to his estate, multo magis in the case of a forfeiture.
‘The claim accordingly was sustained for 50 chalders.’
