testamentary bequests unless the heritage were included in the estate July 17, 1908. disposed of by the will. Crowe. v. Argued for the pursuer and respondent;-The Lord Ordinary was Cook. right, for the presumption in law was that a testator intended his estate not otherwise disposed of to go to his heir or next of kin. Here the heritable estate was not otherwise disposed of. Section 20 of the Titles to Land Act only dispensed with formal words of conveyance where informal words "purporting to convey or bequeath lands" and "with reference to such lands were used. Here there were no words purporting to convey or bequeath lands, and no reference to lands at all. The phrase "the remainder" had no antecedent words embracing heritage to which it could refer. The only antecedent words were "everything else," and these words clearly referred to jewellery only,-to all her jewellery, with the exception of the diamond brooch. There was no appointment here of an executor or of trustees, and there was neither a disposition by habile words of the heritage, nor a bequest of the universitas of the estate. In these circumstances it was impossible to maintain that the heritage had been validly bequeathed.1 been said by the Lord President Inglis in Pitcairn's case, supra, at p. 609, the question is not as to the sufficiency of the language to convey property, but as to the sufficiency to include land of the description of the property intended to be conveyed. "In the present case there is certainly nothing which, in the document of 1903 under construction, expresses the intention to convey lands. But counsel for the defender sought to imply such intention from words which I have not yet quoted, viz., 'everything else to be sold', as raising the implication of a universal settlement. I abstained from quoting these words till now, because I think their meaning and relation has been entirely misunderstood. They occur in connection with the direction as to jewels, thus :-' All my jewels-save a diamond brooch diamond pendant, which Mrs Jolly gave me, to be returned to her. everything else to be sold.' This is ungrammatical and elliptical, but what it clearly means is, 'my two special jewelled ornaments, which Mrs Jolly' (her mother) 'gave me are to be returned to her, and all my other jewels are to be sold.' By no admissible construction can the words be twisted to imply the description of the lady's universitas, heritable and moveable. But it was on this premiss only that it was contended that when the testator came to leave the remainder' to found her endowment, she meant the remainder of the realisations from her universal estate after paying her legacies. Neither can I accept the premiss, nor can I accept the conclusion without the premiss-indeed it was not pressed that I should do so for this could only be on the suggestion that the testator was not likely to found such a charity, unless she contemplated devoting to it the whole residue of her estate, both heritable and moveable. It may be so, but the conclusion would require an excursion into the realms of conjecture, which I am not entitled to make. "I have carefully considered all the other cases cited-(M'Leod's Trustees v. M'Luckie, 10 R. 1056; Forsyth v. Turnbull, 15 R. 172; Copland's Executor, 15 S. L. T. 733; Hunter (Jack's Executor), 15 S. L. T. 989, for the defender; and Urquhart, 6 R. 1026; Campbell, 15 R. 103; Grant v. Morren, 20 R. 404, for the pursuer, and they confirm me in the conclusion which I have reached. "I shall therefore grant decree as craved." 1 Pitcairn v. Pitcairn, Feb. 25, 1870, 8 Macph. 604; M'Leod's Trustees v. M'Leod, Feb. 28, 1875, 2 R. 481; Urquhart v. Dewar, June 13, 1879, 6 R. 1026; Campbell v. Campbell, Nov. 30, 1887, 15 R. 103; Grant v. Morren, Feb. 22, 1893, 20 R. 404. July 17, 1908. Crowe v. Cook At advising on 17th July 1908,— LORD PRESIDENT.-In this case the question is whether the will of the late Mrs Hall Maxwell does or does not carry heritage. I need not minutely examine the law generally on the subject, because the matter was so recently before us in the case of Jack's Executor v. Downie,1 and I have nothing to add to what was then said. The only point is the application to this particular case. The case is, doubtless, a narrow one, and is narrow because of the very inartistic language in which the will is expressed, but on the whole I have come to a conclusion adverse to that of the Lord Ordinary. We have got the length, in Jack's Executor, of holding that where an executor was told to realise "all my estate," and then the residue was disposed of, that indicated a clear intention to dispose of the testator's whole estate, and could receive effect. Now here, we have got almost the same thing. We have got "everything else to be sold," and "I leave the remainder to found and endow a small Home." I think the Lord Ordinary would have come to the same conclusion had he not considered that the "everything else to be sold" was limited, by the context in which the expression is found, to everything of a class which had been mentioned before, namely, jewels. I do not think that is the meaning. The will is the will of a very uneducated person. It is full of mistakes in spelling, and it complies with no rules of grammar. It shews evidently that the writer first put down things which came into her head, and then broke off as occasion offered. After making a special bequest, and then providing for her funeral, and for the disposal of certain animals of which she seems to have been fond, she appoints a certain gentleman to assist the person already named to whom she has left this legacy, and the care of the animals, and then she goes on thus," All my jewels-save a diamond brooch diamond pendant, which Mrs Jolly gave me, to be returned to her. everything else to be sold." If you take that sentence as it stands, it is hopelessly ungrammatical. The words "all my jewels," are never followed by any verb at all. Accordingly I think the natural meaning of what she wrote is this. She began by talking about her jewels. Then the mention of her jewels suddenly brought into her mind the existence of this particular brooch and diamond pendant, which she wished to be given to Mrs Jolly (who, I believe, was her mother), and, having provided for that, she then forgets that she has not supplied any verb to the jewels and goes on-"everything else to be sold." I think what she means is "all my jewels and everything else to be sold," and I think that is pretty apparent from what follows afterwards. She immediately goes on to leave a legacy of a hundred pounds to certain homes, and a hundred pounds "to prevention of cruelty to animals," five hundred pounds to her mother, and three hundred pounds to her aunt, "who will also get all my clothes that are of any use." There again is an instance of how this testatrix had her memory suddenly spurred by the phrase she used. I cannot accept the idea that she was leaving these legacies out of the proceeds of her jewels. We are told that the jewels were valued at the time of her death at about thirty pounds. Whether that valuation was small or large, it is perfectly evident that the testatrix never could have had the idea that 1 1 1908, S. C. 718. Then she July 17, 1908. The Crowe v. Ld. President. she had jewels to such an amount as would meet these legacies. LORD M'LAREN.-I incline to think that in this case we are going further in the direction of giving a liberal construction to the 20th section than has been found necessary in previous cases. As to the word "estate" I have never had any difficulty. It is not ambiguous. It has been described as genus generalissimum, and it includes heritable estate not in virtue of a special meaning derived from the context, but because in its primary and proper meaning the word applies to immoveable as well as moveable subjects. The same may be said of the word "property"; in the absence of limiting words property means everything that belonged to the testator, with the possible exception of an unexercised power of appointment. But the word "remainder" is ambiguous, or at least incomplete, because it means the result of subtraction, or what is left over out of property which the testator has announced an intention of dealing with. We must therefore look to the antecedent clauses of the will to discover whether this is a remainder of the heritable and moveable estates or of the moveable estate only. Now, I confess I have difficulty in finding in Mrs Hall Maxwell's will an antecedent to the word "remainder" from which I can infer an intention to deal with heritable estate. But I think I may say that such difference of view as exists does not touch any question of principle, because I think we are agreed that, in order to the 20th section taking effect on the heritable estate, we must find in the will evidence of an intention to dispose of a remainder which includes heritable estate. It has not been shewn that the money and household effects if sold would have sufficed to endow the home for old colliers which the testatrix meant to establish, and this is an element of evidence of intention to bring the heritable estate within the scope of the will. My doubt is whether in this particular will the word "remainder" is sufficiently proved, or defined, to be a remainder of the whole estate. But where so much depends on impression, I cannot say that my doubt is so strong as to induce me to dissent from the judgment proposed. LORD KINNEAR.-I agree with your Lordship in the chair. I do not think that any difficulty arises in this case from the construction of the statute or from the general rules of law, because I take the law to be well settled as it is stated by Lord President Inglis in the case of Pitcairn.1 The statute requires, in order to give effect to what is called a "bequest of heritage," that such words of bequest shall be used with reference to lands 1 8 Macph. 604. July 17, 1908. or heritable estate as would be sufficient to make a good bequest if they Crowe v. were used with reference to moveables; and, as the Lord President says, Cook. that is a provision which does not dispense in the least in regard to a bequest Lord Kinnear. of land any more than of any other property with the necessity for specification of what is meant to be bequeathed. Therefore it appears to me that the only real difficulty that arises in this case is not in the construction of the statute but in the construction of the will. As to that, I may say that I am not surprised that there should be a difference of opinion. It is extremely difficult to make out what this lady meant. I do not think we are advanced very far by any attempt at grammatical analysis of language that was never intended to be grammar. We must take the words as they stand and try to get at what the testatrix really meant. If we read the words of her direction, "everything else to be sold," as covering everything except what has previously been otherwise bequeathed, then the conclusion that, when she goes on, after directing everything else to be sold, to provide for the application of "the remainder" in a certain way, she intends to dispose of her whole estate, follows of necessity. But then the sentence in which these words occur is so incoherent that it is impossible to be confident as to its meaning, and I am by no means certain that when she directs "everything else" to be sold, she does not mean merely that all her jewels are to be sold, except the diamond brooch. She begins to explain what is to be done with her jewels in general, and before she has explained it she turns off to make an exception, and having made that clear enough, she goes back again to her original notion about the other jewels and says what she wishes to be done with them. This is, I think, a possible construction, but supposing it to be correct, there still remains a distinct bequest "of the remainder," which she directs to be applied for a certain purpose. Now, it appears to me that the natural and ordinary meaning of these words is "the remainder of my estate." "I direct certain jewels to be sold. I direct certain provisions to be made for animals, and I leave certain sums of money and certain personal clothing, and all the remainder is to go to found and endow a Home for old colliers." I should say that means the remainder of her estate,—that is to say, all that is left after the previous bequests have been satisfied, and if that be a right construction of these words, then it is quite as effectual a method of describing her whole estate, heritable and moveable, as if she had inserted the word "whole" before the word "remainder," and the words "of my estate after it. If she directed "the whole remainder of my estate" to be applied in founding a home for colliers, there could be no difficulty in the construction of these words, and no doubt as to the effect of the law introduced by the Act of 1868. On the whole, therefore, I come to the conclusion that this is a good bequest of the residue of this lady's estate, heritable and moveable, for the purpose of founding and endowing a Home for colliers. LORD PEARSON was absent. THE COURT recalled the Lord Ordinary's interlocutor, and assoilzied the defender. INGLIS, ORR, & BRUCE, W.S.-A. C. D. VERT, S.S. C.-Agents. THE RIGHT HONOURABLE JOHN CAMPBELL, BARON OVERTOUN AND ANOTHER (Mackenzie's Marriage-Contract Trustees), Pursuers (Reclaimers).-Dickson, K.C.-J. G. Jameson. DAVID M'LEAN AND OTHERS (William Beveridge's Trustees), AND No. 174. July 17, 1908. Mackenzie's Trustees v. Beveridge's OTHERS, Defenders (Respondents).—Hunter, K.C.-Chree. Marriage-Contract--Election-Whether wife's conveyance of acquirenda Trustees. to marriage-contract trustees carried her right to elect between legitim and a testamentary provision.--By her antenuptial contract of marriage a wife conveyed to the trustees therein named the whole estate then belonging to her, or to which she may succeed or acquire right during the subsistence of the marriage." Her father having died during the subsistence of the marriage, leaving a settlement under which she was a beneficiary, questions arose between herself and her marriage-contract trustees as to the exercise of the right to elect between legitim and her testamentary provision. Held that the right to elect remained with the wife, and had not been carried to the trustees by the conveyance of acquirenda in the marriage contract. kenzie. ON 6th March 1907 The Right Honourable John Campbell, Baron 1ST DIVISION. Overtoun of Overtoun, and another, being a majority and quorum of Lord Macthe trustees acting under the marriage-contract entered into between Robert Mackenzie and Mrs Elizabeth Hill Beveridge or Mackenzie, brought an action against David M'Lean and others, being the trustees acting under the trust-disposition and settlement of the late William Beveridge senior (Mrs Mackenzie's father), and also against certain members of the family of the late William Beveridge as individuals. The summons concluded for declarator that the pursuers, as trustees and as assignees of Mrs Mackenzie under the marriage-contract, were entitled to payment of one-ninth of the late William Beveridge's personal estate, being Mrs Mackenzie's share of the legitim falling to her on her father's death. There were also conclusions directed against William Beveridge's trustees for accounting and payment. The action was defended by William Beveridge's trustees, and also by individual members of William Beveridge's family, including Mrs Mackenzie. The antenuptial contract of marriage, under which the pursuers held office, was signed on 30th May and 2d June 1873 by Robert Mackenzie and Miss Elizabeth Hill Beveridge. By the terms of that contract Robert Mackenzie conveyed to the trustees therein named policies of insurance on his life for £3000, and bound himself on his father's death to pay to them a further sum of £2000. He provided for his wife, in the event of her surviving him, an annuity of £300 per annum, and the whole of his household furniture and plenishing. He also discharged his legal rights in his wife's estate. By the same contract Miss Elizabeth Hill Beveridge on her part assigned, conveyed, disponed, and made over to the trustees" All and sundry the whole means, estate, and effects, heritable and moveable, real and personal, now belonging to the said Elizabeth Hill Beveridge, or to which she has right, or to which she may succeed or acquire right during the subsistence of the marriage hereby contracted, with the whole rights, titles, and vouchers of the means, estate, and effects above conveyed by her, and the said Elizabeth Hill Beveridge binds and obliges herself to complete titles in her person to said means, estate, and effects, and to execute and deliver all such further deeds in |
