Scottish Court of Session Decisions

Subject_1 GENERAL DISCHARGES and RENUNCIATIONS.
Subject_2 SECT. VIII.

If presumed to comprehend legal provisions and undelivered bonds of provision.

Janet Hepburn
v.
James Hepburn

Date: 24 June 1785
Case No. No 36.

A daughter, in her contract of marriage accepted of her tocher, ‘in full contentation and satisfaction of all bairns part of gear, portion natural, legitim, or others whatsoever, that she could ask, claim, or crave, by and through her father's decease.’ The Lords found that she was not precluded from claiming a proportional share of her father's executry or dead's part.

Click here to view a pdf copy of this documet : PDF Copy

Janet Hepburn and her Husband, in their marriage-contract; accepted of the tocher given by her father “in full contentation and satisfaction to them of all bairns part of gear, portion natural, legitim, or others whatsoever, that the said Janet Hepburn or her said husband, for his interest, could ask, claim, of crave, by and through her father's decease.”

Her father having died intestate, Janet Hepburn insisted, after her husband's death, against James Hepburn her brother, for a proportional share of her father's executry.

The defender opposed the discharge above recited, as exclusive of his claim; and

Pleaded; Our municipal law has not rejected pactions super hæreditate viventis. Nothing is more usual, in the marriage-settlements of children, than renunciations of their rights of succession, to the effect of transmitting those subjects to the other relations, which would have descended to the renouncer. Nor, in this instance, can the intention of parties admit of any reasonable doubt. The pursuer had no claim against her father in virtue of any contract of marriage or bond of provision; so that her only other interest in his moveable estate, that of the legitim having been expressly renounced, was the share due to her of his executry or dead's part. To this alone she could be entitled through her father's, decease;’ an expression, with the utmost propriety, applicable to what might fall to her by way of succession, in opposition to her legal and conventional claims. The general scope of the decisions has been agreeable to this reasoning, A discharge of all that a child can claim or crave from her father, does not exclude her from the dead's part, which is not, like the legitim, a vested right, but merely an expectancy of succession. But where she has farther renounced all she can claim through her father's decease, she is thereby cut out of every demand of that sort. Erskine, book 3. tit. 9. § 23; Bankton, book 3. tit 8. § 20; Fountainhall, 4th December 1694, Foubaster, voce Legitim.

Answered; The claims arising to children against the representatives of their father are either legal or conventional; the former consisting of the legitim, and the latter of the obligations due by him, and prestable at his decease, either in virtue of his, marriage-contract, or by bonds of provision, or from any other cause. In regard to these, the children have a proper jus crediti. And their father accordingly has an obvious interest to obtain a discharge, that his estate, disburdened of such incumbrances, may lie open to his unlimited disposal.

Of a nature altogether separate from these, though likewise taking effect at the father's death, is the children's privilege of inheriting that part, of his moveable funds, which alone, by our customs, he is at liberty to settle, in case of children unforisfamiliated, by a testamentary deed. Here the children have no claim against their father or his representatives. They are themselves the representatives; and a discharge from them must be quite superfluous, because this part of his effects must of necessity descend to them under every limitation be is pleased to impose.

Since therefore it is an established rule, that a general clause subjoined to a discharge, shall not comprehend particulars of a nature different from those specially mentioned, the one occurring in the deed in question, which expressly refers to the pursuer's legal claims against her father, cannot be construed, by implication, into a renunciation of her right of succeeding to him. A transaction of the latter sort, though not prohibited by the usage of Scotland, must be expressed in terms clearly denoting the father's purpose of excluding his child from any share of his inheritance; as, for example, by taking a renunciation of what she might succeed to at her father's death, or of her father's executry. This distinction accordingly has been recognised by an uniform train of decisions for many years past. Pringle contra Pringle, 8th February 1740, voce Presumption; Anderson contra Anderson, No 35. p. 5054; 22d. February 1749, Martin contra Agnew, voce Legitim; 29th July 1765, Sinclair contra Sinclair, Ibidem.

Several circumstances were stated for each party, as tending to support their respective pleas; but the case was determined on the general import of the clause, which the Lords considered as perfectly ascertained by the more recent decisions.

After advising a reclaiming petition for the defender, with answers for the pursuer, the Court adhered to the judgment of the Lord Ordinary, which found, ‘that the clause contained in the pursuer's contract of marriage did not preclude her from claiming a legal share of the moveable effects left by her deceased father.’

Lord Ordinary, Kennet. Act. M. Ross. Alt. Wight, Rolland. Clerk, Menzies. Fol. Dic. v. 3. p. 250. Fac. Col. No 214. p. 335.