Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Thomas Watson
v.
Thomas Glass

Date: 23 November 1743

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

This case is reported by Elchies, (Provision to Heirs, No. 7, and Notes.) Lord Kilkerran's note of it is as follows :

“I am stumbled a good deal upon the legal construction of daughters and heirs female, yet still, if, in obligations daughters and heirs female are exegetic, would not such obligations comprehend the son's daughter, when heir of line, which would be absurd ?

“Arniston,—That difficulty is removed, when it is adverted to that the person must, according to the deed, be a daughter as well as an heir female, which excludes the son's daughter, who though heir female is not daughter; and as to the leading proposition, that daughters and heirs female should be deemed exegetic, it may be asked why heirs female should be exegetic of daughters, more than daughters should be held exegetic of heirs female ? It is true, a case may happen, where circumstances may determine the granter's meaning to be different from what the general construction of the words might import. But if none such occur, then the words are to be taken in their proper construction, and therefore, supposing none such to occur in the present case, then as daughters and heirs female are two different characters, that of daughters more limited, and the meaning of which cannot be misunderstood ; that of heirs female more extensive, comprehending daughters it is true, yet, comprehending also persons who are not daughters; now where the words require both characters to concur, as in this case daughters and heirs female, if there are not circumstances to show the contrary, why should not both characters concur, ere the person be entitled to claim the provision? But the matter does not rest here; the reason of the thing, which is the strongest of all circumstances, concurs to support the natural construction of the words; for though it must be owned, the deed itself tailying a trifle in this way was foolish and unreasonable, yet still the most irrational thing of all would have been, to burden his son with 10,000 marks to a daughter, whereas the burdening the extraneous heir male in it, in case of his succession, was the only case in which in common sense any one would have given such a provision to a daughter.

N. B. The interlocutor was adhered to as above, on these grounds, 1mo, that the heir male burdened, plainly comprehended the son, as well as the other heirs male. 2do, The general disposition of all moveables, as well as heritage to the heirs male.”