William and Peter Rougheads v. Marion Rannie, and Others
Date: 14 February 1794 Case No. No 54.
A father having granted a provision to his son, and declared, that in case of his dying in minority, and without lawful children, he should be succeeded by his sisters, “or such of them as should then be in life;” and the son having died in minority, and unmarried, his nephew, by a sister who predeceased, was found entitled to his mother's share.
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William Craig, by a holograph settlement, containing several ambiguous and contradictory clauses, and proceeding upon the narrative of love and affection to his wife and children, conveyed to them nominatim, and in the different proportions therein mentioned, his whole heritable and moveable property.
The deed declared, that Marion Rannie, his wife, should have the liferent of part of the subjects; that the provision of Archibald his son should descend to his heirs, executors and assignees; and besides the provisions which the daughters (who were five in number) were to enjoy immediately upon their father's death, it contained, in a subsequent clause, the following substitution in their favour:
“To my said five daughters, or such of them as, shall be in life, my whole heritage and moveables, at the decease of my said wife and son, and longest liver of them two, if my said son die in minority, and without lawful children.”
The children, at the date of the settlement, were all minors, and unmarried.
Archibald died in minority, and without issue.
Jean, one of the daughters, who was married after her father's death, died before her brother.
William Roughead, her son, and his father, as his administrator in law, brought an action against the grandmother and surviving aunts, claiming, inter alia, the share of Archibald's succession, which his mother would have been entitled to had she survived him; and
Pleaded; If it had not been for the clause of substitution in favour of the daughters, the pursuer would have been entitled, jure representationis, to a share of his uncle's heritable succession; and there is no reason to presume that its object was to exclude their children.
Besides, it is a general maxim of law, that when a father grants provisions to his children, without mentioning their heirs, and appoints substitutes to them, the substitution takes place only si instituti sine liberis decesserint. The object of such provisions, is to enable the children to settle in the world; and as it would be contrary to the natural feelings of a father, the law, unless it is expressly declared, will not presume an intention on his part to exclude their descendents, Erskine, b. 3. tit. 8. § 46.; Kilk. Clerk Home, 21st November 1738, Magistrates of Montrose against Robertson, No 50. p. 6398.; 20th December 1758, Yule against Yule, No 51. p. 6400.; 26th June 1789, Wood against Aitchison, voce Provision to Heirs and Children.
Answered; It seems to have been the intention of the testator, that his son should, at his majority or marriage, have the free disposal of his property; but that, if he died before either of these events took place, such of his daughters as were then in life, to the exclusion of the descendents of those who had predeceased, should succeed to him.
At any rate, as the deed limits the substitution to such of the daughters as should be alive at their brother's death, effect must be given to it, even though there were reason to believe that this was not the intention of the testator; Judgment of the House of Peers 26th March 1770, Baillie against Tenant, voce Succession; July 1778, Hay against Hay*.
The Lord Ordinary sustained the defences; but the Court, after advising a reclaiming petition and answers, upon the general ground above stated, almost unanimously gave judgment in favour of the pursuers.
Lord Ordinary, Henderland.Act. Charles Brown.Alt. Wolfe Murray.Clerk, Sinclair.
Fol. Dic. v. 3. p. 301. Fac. Col. No 104. p. 232.
