Scottish Court of Session Decisions

Subject_1 PROVISION to HEIRS and CHILDREN.
Subject_2 SECT. I.

In Provisions to the Issue of a Marriage, wheather the Children succeed per captia, or if the Heir is preferred?

Allan Macdoual
v.
Colonel Macdoual

1727. February.
Case No. No 8.

A sum of money provided to the heirs of a marriage, found to divide amongst all the children equally.

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John Macdoual of Ardincaple, having a son and other children of a first marriage, did, in his second contract of marriage, make the following provision to the children of the marriage:

“And further, the said John Macdoual binds and obliges him, his heirs and successors to his lands and heritages whatsoever, to provide, secure, and make payment and satisfaction to the heirs to be procreated betwixt him and Anna Campbell, of the sum of L. 1000 Scots, and that at the decease of either of the spouses.”

There being two sons of this marriage, the eldest served himself heir of provision, and uplifted the whole sum of L. 1000, whereupon the second brought a process against him, to account for the half; and the question arose upon this point, whether the foresaid provision of L. 1000, to the heirs of the marriage, did belong to the eldest son as heir of the marriage, or if it must divide amongst all the children?

It was pleaded for the pursuer; That the word heirs is a general term, belonging equally to successors in moveables and in heritage, as is plain, because where a sum is provided to heirs and assignees, and executors not mentioned, it will fall to the executors, as hæredes in mobilibus. And hence, in consequence of such a clause as that in dispute, the same reason that makes heritage go to the heir properly so called, will carry sums of money to the whole children equally; for where lands are provided to the heirs of the marriage, the heir properly so called is indeed preferred, but not directly from the force of the clause, but because he would have succeeded however in that subject by the provision of law; and nothing appears from the general term of heirs, that can be interpreted to set his right aside. The very same way where a sum of money is provided to heirs of a marriage, the whole children must be entitled to it, as heirs in that subject; 2do, Whatever be the proper signification of this clause, the father's intention in this circumstantiate case, was certainly to bring in all the children of the marriage equally; for where there could be no possible view of establishing a family, is it credible, that of a small provision of money naturally divisible amongst all the children, the father could intend the whole to any one child, exclusive of all the rest? This cannot be imagined; and if the father's intention is certain, no matter what terms he made use of, proper or improper.

Answered to the first, Heirs indeed is a general term, comprehending both heirs and executors; but heirs of a marriage is not a general term, it can have but one precise meaning, because executors of a marriage is not a nomen juris. And here is the error of the pursuer's reasoning; for does it follow, because under the general word, heirs, executors are also comprehended, therefore heirs does always mean the whole children of a marriage, in opposition to the heir strictly so called? To the second, answered, Where words are express, as they are certainly in this case, there is no place for conjectural meanings.

“The Lords sustained process.”

Fol. Dic. v. 2. p. 276. Rem. Dec. v. 1. No 95. p. 188.