Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. III.

Deeds in favour of Children or near Relations, whether presumed in satisfaction of former revocable settlements?

Margaret Crawfurd, and John Cochran her Husband,
v.
William Hogg

Date: 6 January 1747
Case No. No 121.

A clause in a contract of marriage, whereby the wife accepted the provisions in full of all she could claim through her husband's decease, was found, in consideration of the circumstances of the case, to exclude the claim of her next of kin on her decease.

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By contract of marriage entered into between William Hogg, merchant in Edinburgh, and Anna, daughter to Patrick Crawfurd merchant there, it was agreed that William Hogg should provide 24,000 merks Scots of his own money, together with 7000 merks received by him in tocher, upon land, or other securities, to be taken to himself and spouse, in conjunct fee, and to the children of the marriage, declaring, that if there should be no children, she should have a liferent of 1200 merks Scots, and the half of the conquest, with one half of his household furniture, restricted, in case of children to 900 merks, and half of the household plenishing, which she “accepted of in full satisfaction of all further liferent, terce, moveables, or any other manner of way, through her said promised husband's decease.”

The marriage dissolved by the death of Anna Crawfurd; and Margaret her sister, with concourse of John Cochran of Ravelridge her husband, brought a process against William Hogg, junior, merchant in Edinburgh, as representing William Hogg then also deceased, to account for the wife's share of moveables in communion, in which the Commissaries of Edinburgh, 21st November 1746, “Having considered the contract of marriage betwixt William Hogg and Anna Crawfurd, and the ample provisions therein contained, in favours of the said Anna Crawfurd, and the whole circumstances of the case, found that by the said contract she had accepted of the conventional provisions therein specified, in place of the legal provisions.”

This question, whether her accepting of a conventional provision related only to the event of her surviving her husband, or also to that of her predeceasing him, was reported on a bill of advocation and answers.

Pleaded for the defender, That the claim set up by the nearest of kin to wives, to carry off the effects from the husband, was unfavourable, but especially so, when the wife had renounced her right in the communion, and accepted of an equivalent in the event of her surviving her husband; and it was believed that there was no instance of this renunciation being made in the one event and not in the other, except when it was omitted by the inaccuracy of the writer; that in this case the provisions settled on the wife, were a large annuity of 1200 merks, with the liferent of half of the conquest, and the half of the household furniture; and the terms of the renunciation made by her comprehended her whole interest in the moveables, without being restricted by the latter part of the clause; for she had not right to them through her husband's decease, but in virtue of the communion subsisting during the marriage: And these words must relate to the other claims competent her, as, besides her terce, that for aliment and mournings.

A clause discharging a husband in these terms, “Of any thing that could belong to the wife as relict, in case she survived him, by law, or any other manner of way whatsomever.” was found to exclude her nearest of kin, 12th July 1701, Boyse against Sandilands, 31. p. 5049. as was a clause, where the acceptance was, “In full of all third or half of moveables the wife, her executor, or nearest of kin could claim by or through the husband's decease, any manner of way, excepting his good will only;” 19th February 1743, Thomson against Lawrie, No 351. p. 6142; and a like case, 25th July 1738, Freebairn against Gowan. See Appendix.

Pleaded for the pursuer, That the plain intendment of the contract was to discharge the claims competent to the wife, in the event of the husband's death, for which she received an equivalent; but as there was none stipulated to her nearest of kin for the claim competent upon her decease, therefore she did not renounce it. Such a bargain is equal, and to be presumed, though sometimes, in fact, the agreement is made otherwise, in which case it must stand: But there was no reason of straining words to presume any such bargain here, as the provisions on the wife were moderate, and rather small than otherwise.

The relict's share of moveables may very properly be said to fall to her through her husband's decease; for, though lawyers talk as of a communion, yet she is entirely excluded from the administration; her proportion is not determined, but depends on the existence or not of children; and the husband may, by changing the nature of his effects, entirely diappoint her.

The decisions do not come up to the present case: In that of Boyse the renunciation was of any thing that belonged to her as relict, or any other manner of way whatsoever: In Freebairn's, the wife had discharged her claim, either at her own or her husband's decease; and in Lawrie's, she renounced the claim of her nearest of kin.

The Lords refused the bill.

Fol. Dic. v. 4. p. 122. D. Falconer, No 151.p. 193.

*** Kilkerran's report of this case is No 30. p. 2274, voce Clause.