estate by will. Now, I think the decisions upon the latter point are on the Mar. 7, 1908. whole consistent, and they proceed upon the principle of ascertaining Jack's whether the testator had heritage in view when he made his will. In one Executor v. Downie. case the word "property" was held to be sufficient to pass heritage, and the word "estate" seems to me to be quite as general and as sufficient to pass Lord M‘Laren. heritage unless where it is used in a more limited sense. I observe that in the case of Grant v. Morren,1 where it was held that the will was not habile to convey heritage, I expressed the view that the "estate" there conveyed was confined in meaning to such estate as an executor might administer. But that case is distinguished in two important elements from the case before us. First, there was in Grant's case1 no formal gift or direction, but only a bare appointment of an executor to perform the duties of an executor; while here, after appointing an executor, the testator goes on to bequeath legacies and to direct that his estate shall be realised and divided. But I also agree with your Lordships in holding that the word "all" is important. In cases like that of Grant1 the words "my estate" may be controlled by subsequent expressions and by the terms of directions given to the executor, but that is only if the words themselves are ambiguous; and where, as in the present case, the word "estate" is joined with the word "all" there is no ambiguity, and there is no necessity of drawing inferences from other parts of the deed to explain what is already clear, and still less to limit the generality of a clause which on the face of it is a universal bequest of the testator's estate. LORD KINNEAR.-I think that the first question in this case is solved by a consideration of two propositions, both of which have been stated by Lord President Inglis in two different cases, viz., (1) that the first question in cases of this kind is whether words importing a gift have been used in a will or testament with reference to land, and (2) that that question must be answered in the affirmative if the words employed describe either heritable estate in particular, or the testator's whole estate without distinguishing between heritable and moveable. If this is sound, the application is easy, because the testator here directs that "all" his "estate" is to be realised, and then, after certain legacies have been paid, that the residue of "my estate" is to be divided between his wife and his sons. I do not think it can be disputed that if he had said in terms, "all my estate, heritable and moveable," his intention would have been quite plain, in spite of the appointment only of an executor. It is just as plain in the will as it stands, because if a man has heritable as well as moveable estate, the direction to realise "all my estate," is not carried out if only his moveable estate is realised. Upon the question of the power to sell, I think that follows as a matter of course, for the reasons stated by your Lordship. LORD PEARSON was absent. THE COURT answered the first and third questions of law in the C. STRANG WATSON, Solicitor-W. I. HAIG SCOTT, S.S.C.—Agents. No. 103. Mar. 7, 1908. Dempster v. Baird & Co., Limited. 2D DIVISION. Sheriff of Ayrshire. ALEXANDER DEMPSTER, Claimant (Appellant).—Watt, K.C.-Spens. Master and Servant-Workmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37), sec. 1 (3)—Arbitration proceedings - Competency-Unrecorded agreement not acted on for seven years.-In March 1899 a miner sustained injuries, by which he was totally incapacitated for his work, and by agreement with his employers he was paid compensation under the Workmen's Compensation Act, 1897, from March 1899 till May 1900, at the rate of 14s. 4d. per week, being half his previous wages (the statutory maximum). No memorandum of the agreement was ever recorded, and it was never formally varied or ended under the Act. In May 1900 the employers ceased the weekly payments, and the workman returned to their service, in which he remained working and earning wages, when he was able, as a pit bottomer, till April 1907, when, as the result of his injuries in 1899, be became totally incapacitated for work. No compensation was paid to the workman between May 1900 and April 1907. In 1907 the workman claimed compensation as from May 1900, and the employers having refused to pay compensation as claimed, he instituted arbitration proceedings under the Act. The employers maintained that in respect of the agreement arbitration was incompetent. Held that there was no subsisting agreement between the parties, and hat consequently arbitration proceedings were competent. Expenses-Stated Case-Workmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37)-Expenses of adjusting stated case. -Where the appellant in a stated case under the Workmen's Compensation Act, 1897, had been allowed the expenses of the stated case, the Court, following the practice adopted in the case of London and Edinburgh Shipping Co. v. Brown, 1905, 7 F. 488, modified the expenses to be allowed for adjusting the stated case at the sum of £3, 3s., including the fee of £1 paid to the Sheriff-clerk. ALEXANDER DEMPSTER, miner, Muirkirk, in 1907 instituted arbitration proceedings under the Workmen's Compensation Act, 1897, in the Sheriff Court at Ayr, against William Baird & Company, Limited, carrying on business at Muirkirk. The Sheriff-substitute (Shairp) having dismissed the application as incompetent, Dempster appealed. The stated case for appeal was as follows: "This is an arbitration under the Workmen's Compensation Act, 1897, in which the said Alexander Dempster (who, on or about the 1st day of March 1899, whilst in the employment of the said William Baird & Company, Limited, in Lightshaw No. 1 Pit, Muirkirk, was struck by a fall of rock from the roof of said pit, and sustained severe injuries to his back, and also severe internal injuries) in an ordinary application or petition, and not by a minute, craves the Court to ascertain and fix such weekly payments as may be found to be due and payable to him under and in terms of the said Act, and to grant an award against the said William Baird & Company, Limited, in his favour, finding him entitled to such weekly payments, beginning the first payment as on the 28th day of May 1900 for the week preceding that date, and so on weekly thereafter until he is again able to earn his full wages, or such weekly payment is varied, with interest on each weekly payment at the rate of 5 per centum per annum from the date when the same became and becomes payable till payment, with expenses. "The following facts were admitted or proved :-(1) That, as the result of the said injuries received by him, the said Alexander Dempster was totally incapacitated for his work as a miner from the Mar. 7, 1908. said 1st day of March 1899-the date of the said accident-until the Dempster v. 21st day of May 1900. (2) That his average weekly earnings in the Baird & Co., employment of the said William Baird & Company, Limited, during Limited. the twelve months previous to the date of said accident were 28s. 8d. (3) That in the fourth article of the applicant's condescendence it is averred that the applicant, by agreement with the respondents, received compensation, under the Workmen's Compensation Act, 1897, from the 15th day of March 1899 until the 21st day of May 1900, at the rate of 14s. 4d. per week'; and the answer of the said William Baird & Company, Limited, to this averment is, 'Admitted.' That, accordingly, under an agreement entered into between the applicant and the said William Baird & Company, Limited, they agreed to pay to him, and he agreed to accept and receive from them as compensation, under said Act, for his said injuries, the sum of 14s. 4d. weekly from the 15th day of March 1899. That it was not averred or proved that such agreement had been ended or varied, and that no memorandum of said agreement was sent to the Sheriff-clerk, or recorded by him in the special register. (4) That, on or about the 21st day of May 1900, the said William Baird & Company, Limited, ceased to pay to the said Alexander Dempster the said weekly payments, but gave him employment as a pit bottomer, and that the said Alexander Dempster worked when he was able for the said William Baird & Company, Limited, as a pit bottomer from about the said 21st day of May 1900 till about the 1st day of April 1907, when, as the result of his said injuries, he became totally incapacitated for even light work, and ceased working altogether. And (5) that the said William Baird & Company, Limited, refused to pay him compensation from and after the said 21st day of May 1900. "On these admitted or proved facts I sustained pleas in law stated for the said William Baird & Company, Limited, to the effect that their liability to pay compensation under the said Act to the said Alexander Dempster having been settled by agreement between him and them (a memorandum of which agreement might have been recorded by the said Alexander Dempster, in terms of section 8 of the Second Schedule to the Workmen's Compensation Act, 1897, and upon an extract of which recorded memorandum the said William Baird & Company, Limited, might have been charged to pay to the said Alexander Dempster the weekly payments agreed upon), his application for arbitration was incompetent; and I accordingly dismissed the application, and found the said Alexander Dempster liable to the said William Baird & Company, Limited, in their expenses of process." The question of law for the opinion of the Court is :-"Was the Sheriff-substitute right in holding that, the compensation due to the applicant having been settled by agreement between him and the respondents, the proper course for the applicant to have adopted was to have recorded a memorandum of said agreement, and charged the respondents thereunder; and that the present application for arbitration is incompetent, because an agreement as to the compensation to be paid to the applicant by the respondents has been entered into between the parties?"* * The Workmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37), enacts-Sec. 1, subsec. 3. "If any question arises in any proceedings under Mar. 7, 1908. The case was heard before the Second Division on 21st and 22d January 1908. Argued for the claimant and appellant ;-There was no subsisting agreement between the parties. The original agreement had been brought to an end by the termination of the workman's incapacity, and his return to work. No compensation had been paid or demanded under it for seven years. In these circumstances it must be held that the parties had agreed to terminate the agreement. No memorandum had been recorded. There was therefore nothing here equivalent to a decree which could be held to remain in force till formally abrogated. The workman could not have recorded the original agreement at the date when his incapacity recurred. As there was no subsisting and enforceable agreement, arbitration proceedings were competent. The parties were at issue as to the amount and duration of the compensation.2 The case of Dunlop v. Rankin & Blackmore proceeded on the view that there was there a subsisting agreement. 3 5 Argued for the respondents ;-Where there was an agreement arbitration was excluded. The Sheriff as arbiter had jurisdiction to determine whether he had jurisdiction, and for that purpose to determine whether or not there was a subsisting agreement. Here he had determined that there was a subsisting agreement. That was a question of fact on which his decision was final and not subject to review. But apart from that there was here a subsisting agreement. The only ground of the workman's claim was the agreement. An agreement subsisted until it was reviewed or modified, or ended under the Act. At least it continued in force as long as there was incapacity on the part of the workman, as there was here. The fact that payments had been discontinued for a time was irrelevant. The workman might waive his right to payments under an agreement in whole or in part for any particular period, but that did not terminate the agreement. The workman's proper course was to record a memorandum of the agreement.6 Once there was an agreement, parties could proceed only as on agreement, and could not resort to arbitration as if there had never been an agreement. This was so even if the parties had come to disagree. The only competent course in that case was to apply for alteration of the agreement in the way provided this Act as to the liability to pay compensation under this Act (including any question as to whether the employment is one to which this Act applies) or as to the amount or duration of compensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be settled by arbitration in accordance with the Second Schedule to this Act." 1 Workmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37), sec. I (3); Colville & Sons, Limited, v. Tigue, 1905, 8 F. 179, per Lord Stormonth-Darling, at pp. 186-7, and Lord Low, at pp. 189-90; Strannigan v. Baird & Co., Limited, 1904, 6 F. 784, per Lord Kinnear, at pp. 792-3. 2 Workmen's Compensation Act, 1897, sec. 1 (3). 3 1901, 4 F. 203. 4 Workmen's Compensation Act, 1897, sec. 1 (3); Colville & Sons, Limited, v. Tigue, 1905, 8 F. 179; Dunlop v. Rankin & Blackmore, 1901, 4 F. 203. 5 Colville & Sons, Limited, v. Tigue, 1905, 8 F. 179, per Lord Kyllachy, at p. 183. Workmen's Compensation Act, 1897, Second Schedule (8); Dunlop v. Rankin & Blackmore, 1901, 4 F. 203. by the Act. The dicta of Lord Stormonth-Darling and Lord Low Mar. 7, 1908. in Tigue, and of Lord Kinnear in Strannigan, founded on by the appellant, were obiter. At advising on 7th February 1908, LORD JUSTICE-CLERK. This is a very exceptional and peculiar case. The workman, whose injury occurred in the early part of 1899, agreed with his employers to accept a certain weekly payment in respect of incapacity, and this was paid down to May 1900. At that time payments as for compensation were stopped, and the workman was taken back into the employment as a bottomer, and paid by wages for his work. He neither asked for nor received any money in name of compensation for the injury. No agreement was registered, and for seven years the work was continued to him, and the wages for the work given to him. Then a new state of matters arose. The injury he had received had not been cured, for he ́again became incapacitated by reason of the injury, and now remains incapacitated. Such being the facts, the question arises whether the workman, being now incapacitated by the injury incurred seven years ago, is entitled to ask for compensation in an arbitration. The Sheriff-substitute has held that he cannot competently do so that as there was an agreement for compensation in 1899, the workman's course was to register a memorandum of that agreement in terms of the Act, and insist on his compensation being paid to him under it. I am of opinion that the view of the Sheriff-substitute is erroneous. The agreement of 1899 was one on the footing of total incapacity, and when in 1900 total incapacity ceased, the agreement must have been modified if the master so required, either by a new agreement or, if the agreement was put on the register, by the Sheriff being called upon to reduce the amount payable. No such proceedings took place. The master simply refused to pay any more, in respect he was employing the workman and paying him wages, and the workman was accepting the wages and claiming no compensation. The course of things, therefore, during the seven years was not regulated by the agreement-there was no agreement which applied to the circumstances, for an agreement based on ascertained total incapacity, and implemented by payments applicable only to total incapacity, could not apply to a case where a workman was earning the full wages of the employment which he was offered and accepted, and was receiving nothing else. The workman now comes forward demanding to be paid compensation for all the past seven years, and to this end brings a petition in ordinary form for an arbitration under the statute. I cannot hold that he is debarred from instituting such a proceeding, he being now incapacitated. I say nothing as to whether he can succeed in his demand for compensation during the seven years when he was in employment on wages. The only question before the Court now is whether his present proceeding is bad from incompetency. The question put raises that question only, and I 1 Workmen's Compensation Act, 1897, First Schedule (12). 2 1905, 8 F. 179, at pp. 186 and 189. 3 1904, 6 F. 784, at p. 792-3. Dempster v. |
