Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Margaret Tod, eldest daughter to the deceased Olipher Tod, Shipmaster in Leith, and Captain Patrick Baptie, Shipmaster there, her Husband, for his interest
v.
Olipher Tod, her Brother, and his Curators

Date: 2 July 1714

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Olipher Tod, Shipmaster in Leith, by his disposition, dated 25th August, 1710, assigned 6000 merks to Olipher his son, 5000 merks to Margaret, his eldest daughter, 4000 merks to Helen, his second daughter, and 2000 merks to each of his two youngest daughters ; and by a general clause, assigned in favour of his son and daughters, equally and proportionally among them, all and sundry other sums, goods, gear, &c. that should be resting to him the time of his decease. Thereafter, 7th April, 1711, he writ from London to Robert Tod, merchant in Edinburgh, whom, with other friends, he had appointed tutors and curators to his children, a letter containing these words: “There will be little to add to the former testament left with you; only I think Olipher may be allowed L2000 out of the remanent stock, and the rest divided amongst them equally, above the proportions nominated.—So I pray the Lord may give them grace,” &c. After the father's death, Margaret Tod, and Captain Baptie, her husband, pursue Olipher Tod her brother, and his curators, to make payment of the provision. In which process the meaning of the father's letter aforesaid came to be controverted.

The son contended that the said letter writ by way of codicil to the uncle, entitled him not only to L2000 of the remanent stock as a prœcipuum, but also to an equal share of what was, with the rest of the children. Because, 1mo, the father appointed to get the foresaid L2000; and ordered the rest to be divided amongst them, that is among them equally; of which the son was a principal one, being heir to his father. 2do, If there were any dubiety in the word them, the same is taken away by the immediately subsequent clause, where the father prays for grace to them ; from which prayer the son could not be understood excluded : and therefore he must be understood also included in them, in the former clause.

Answered for Margaret Tod,—1mo, By the former testament, or general clause in the special disposition, all the children were to have an equal share of the remanent stock; and the missive-letter makes no alteration in the general partition, except giving to the oldest L2000 out of the remanent stock. And by the word them, he certainly meant his daughters, whom he had not spoke of expressly before, and not his son, expressly mentioned before. Besides, a dubious expression in a codicil, doth not derogate from the express words of a preceding testament, which are drawn ad mentem testamenti.—Menoch de presump. Lib. 4. pres. 117. N. 3. 2do, The signification of them, in the latter clause, can have no influence on that word in the former: because, 1st, In the latter clause, touching eternal and spiritual concerns, the children had no separate or interfering interests ; whereas, in the former clause, about their temporal concerns, the interest of one derogates from that of another. 2d, If the father had given his blessing to his son expressly, and then given it to them, the latter blessing had been applicable only to the daughters.

The Lords found that the son ought to have L2000 as a præcipuum, beside an equal share with the daughters.

MS. page 74.