Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROVISION TO HEIRS AND CHILDREN.
Subject_3 Extent and effect of the Father's Power of Division.

Agnes Lamond
v.
Walter Lamond

Date: 17 July 1776

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[Fac. Coll. VII. 262; App. No. 1, Provision to Heirs, No. 1.]

Monboddo. If the words had been heirs or bairns, the case would have been different: Or has been found exegetic or explanatory. Heirs and bairns are words which admit of a different construction. Heirs first, and then bairns. When there is no power of division, the law will divide the subjects applicando singula singulis: the heritage will be given to the heir, and the moveables to the other children. The decision Wilson was founded entirely on the specialties of the case; for there the father had reserved a power of division, and hence it was concluded that he did not mean that the whole heritage should go to the heir.

President. The decision Wilson did not proceed on the father's power of division, but on the circumstances of the parties. When there is any purpose of making a representation, the words will be explained favourably to the heir. Such also was the case of Kemp, decided some years before. This shoemaker had no intention of establishing a family.

Covington. Failing children of the marriage, the subject divides into thirds; one to the wife's heirs, and two to the husband's heirs. The same construction ought to take place here: the lands bought by the father are taken partly to the son nominatim, and partly to heirs in general. The father had a power of distribution: and he has distributed.

Kennet. Lands taken nominatim to the son, must go to him. I have some doubt as to the other parcel provided in general to heirs.

Gardenston. I am surprised to see this clause occur so often, when it has produced so many disputes. The parcel taken to heirs, must go according to the sense of the marriage-contract.

“The Lord Hailes, Ordinary, had found, that the pursuer has no interest in the heritable subjects which belonged to her father, in respect that no one of the many decisions quoted by her seems to be in point; but that all of them do relate either to cases concerning the destination of sums of money, or of subjects which were not properly lands, or to cases that were determined in consequence of certain clauses in the deeds themselves, inconsistent with the supposition of the word heir being understood according to its strict and proper import: That there is no necessity, here, of departing from the general meaning of the word heir: That, by heir, in the marriage-contract, the heir of the marriage, properly so called, was understood; and by bairns, the younger children; and that the destination therein did, according to the nature of the subjects, and the rules of law, provide that the heritage should go to the heir of the marriage, who is Walter Lamond, and the moveables to the younger children of the marriage; not, as the pursuer contends, that the heritage should be divided between the only son and heir of the marriage, and one of four daughters who is not forisfamiliated.”

But, on the 17th July 1776, “The Lords found that, by the conception of the contract of marriage, the provisions therein stipulated are in favour of the whole children; but found that there remained in the father a power of division; and that the disposition taken by Archibald Lamond the father, to himself and spouse in conjunct-fee and liferent, and to Walter Lamond the son, nominatim, must carry the subject thereby disponed to the said Walter the son: and found that Agnes Lamond has right only to her share of the remainder of the estate, after taking therefrom that subject; and remitted to the Lord Ordinary to proceed accordingly;” altering Lord Hailes's interlocutor. And, on the 3d August 1776, “adhered.”

Act. G. B. Hepburn. Alt. D. Armstrong, A. Crosbie.