In questions between parents and children, who understood to be fiar.
Subject_3 SECT. VIII.
Provisions to Daughters, to return if they die without Children.
Andrew Jamieson, v. Nearest of Kin of Rachael Wilson
Date: 2 March 1775 Case No. No 69.
In a competition between the wife's next of kin, and her second husband, claiming, as her assignee, part of the tocher contracted with her first husband, which, in the event of there being no child of that marriage living at her death, was conditioned to return to her “nearest heirs and executors,” the Lords preferred the husband.
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In the contract of marriage between Rachael Wilson and her former husband, David Russel, she was provided in a liferent annuity of 500 merks; and, on the other part, her father, Walter Wilson, did assign to the said David Russel the sum of 5000 merks Scots, which Rachael accepted of in full satisfaction of bairns part of gear, &c.
By the said contract it is mutually agreed, “That in case the marriage dissolves within year and day, without a living child procreated betwixt them, then the provisions above written shall return to either party, their nearest heirs or executors: And, in case there be no child alive at the time of the said Rachael Wilson her death, then there shall 1000 merks of her tocher return to her nearest heirs and executors.”
This marriage dissolved without children by the death of David Russel the husband; and Rachael Wilson, the widow, having intermarried with Andrew Jamieson; in a postnuptial contract of marriage between them, dated December 10. 1754, the said Rachael Wilson, on her part, for the onerous considerations therein mentioned, assigned to her husband the foresaid sum of 1000 merks Scots, with annualrent, &c. and the said former contract of marriage itself, in so far as concerned the said sums.
Rachael Wilson having died, and Jamieson, the husband, failing in his circumstances, he conveyed the 1000 merks above mentioned, with all his other estate, real and personal, in favour of a trustee for his creditors.
In consequence of this conveyance, the trustee claimed from the heirs of David Russel this sum of 1000 merks; and the same being likewise claimed by the executors and nearest in kin of Rachael Wilson, as having right thereto in virtue of her first contract of marriage, a multiplepoinding was raised by the heirs of David Russel, in which the Lord Ordinary gave a judgment, ‘preferring Jamieson, the husband, to the wife's next of kin;’ who reclaimed, and
Pleaded; That Rachael Wilson was neither entitled in law nor equity to grant this assignation. It will not be disputed, that the father of Rachael Wilson, who was undoubted proprietor of the whole 5000 merks of tocher, before her contract of marriage with Russel, had it in his power to dispose of this money under such conditions as could be agreed upon betwixt him and the other contracting parties; as it appeared to him, therefore, a reasonable thing, that, in the event of his daughter dying without children, 1000 merks of her tocher should revert to her own nearest relations, he was careful that it should be so expressly provided by the above clause of return in favour of her “nearest heirs and executors.”
In the next place, that Rachael Wilson never had any property in the sum in question is extremely obvious. Prior to her marriage with David Russel, the absolute property of this money was in her father: Posterior to that marriage, the liferent thereof remained with her father; but the fee was in Russel her husband. The right could never be in Rachael, because the condition on which the sum was to return, being her death without children, it could not be purified during her life. Upon the death of Russel, both the liferent and fee of this sum devolved upon his heir, burdened with the return thereof, at the death of Rachael Wilson, to her nearest heirs and executors; so that, at no period whatever, had Rachael either the liferent or the fee of this money. It does not occur, therefore, upon what principle she could assume the power of disposing of this sum, and of taking the fee from those in whom it was vested by the foresaid clause of return, which was, in effect, equivalent to a disposition in their favour.
Answered, 1mo, By the conception of the contract, in general, and even of the clause of return, in particular, Rachael Wilson acquired right to this 1000 merks during her own lifetime, and thereby became entitled to dispose of the same. By the words of the contract itself, the fee of the 1000 merks must have been vested in Rachael Wilson, upon this ground, that, where a sum of money is taken to a person's heirs and executors, such sum will undoubtedly belong to the person himself, and be at his disposal, unless it shall evidently appear that the designation of heirs and executors, was intended to demonstrate and point out certain individuals intended to be favoured. The right to the 1000 merks must have been in somebody, after the dissolution of the marriage between Rachael Wilson and her husband, by his death. It could not be in the husband's heirs, who had not right thereto by the contract. It could not be in the executors of Rachael, because, till her death, no such persons did exist. It must, therefore, have immediately vested in her own person, and have become by her assignable at will. It is therefore evident, that, in the eye of law, a right granted to the heirs and executors of any person, is virtually granted to the person himself; and of consequence, that the 1000 merks in question were as much provided to return to Rachael Wilson, as if she herself had been expressly mentioned in the clause of return.
The condition of return, which, it is urged, was incapable of being purified during the life of Rachael Wilson, was clearly purified the moment it became certain that there were to be no children of her body of that marriage alive at the time of her death: Now, this was equally certain a few months after David Russel her husband's death, as it was at the time when her death actually happened. In the eye of law, therefore, the condition was completely purged, and Rachael became entitled to receive and dispose of the 1000 merks from and after the death of her husband.
The intention of the contracting parties appears clearly to have been this, that, in case the marriage should dissolve within year and day, the provisions should return to either party, their heirs and executors; that, in case it should subsist longer, and afterwards dissolve without children, by the death of the wife, in that event, the surviving husband should pay back 1000 merks of the tocher to her heirs and executors; and, in case of its dissolving by the death of the husband, then the 1000 merks should return to Rachael herself, her heirs and executors. That such must have been the meaning of parties, will not admit of a doubt, although, from inattention, they have only expressly provided for the event of the wife's death before the husband, and of consequence, have confined the conditional return to her heirs and executors, on supposition of her pre-decease. And, as the intention of parties is clear, the Court will be inclined ex æquitate to supply any defect in the words themselves, and will not permit the executors of Rachael Wilson to take advantage of a doubtful, or defective clause in a contract, in which they had no farther concern than a mere spes successionis, from their being pointed out as the successors of Rachael Wilson in the 1000 merks, in case of her dying before her husband; but which was at an end by her living after him, and thereby acquiring right in her own person to the said sum.
But, 3tio, Supposing the contract to be strictly interpreted, and the right to the 1000 merks to be confined to the heirs and executors of Rachael Wilson: By executors are to be understood not merely executors at law, but any executor or executors which Rachael Wilson should regularly and legally appoint; and, it is apprehended, that the pursuer, Andrew Jamieson, though nominally an assignee, is virtually the executor of Rachael Wilson, with regard to the sum contained in the clause of return, and is entitled, as such, to confirm himself executor-creditor, and thereby to draw the 1000 merks in question.
‘The Court adhered to the Lord Ordinary's Interlocutor.
Act. H. Erskine.Alt. M'Cormick.Clerk, Ross.
Fol. Dic. v. 3. p. 212. Fac. Col. No 167. p. 62.
