( Ante, vol. xxi. p. 664, and 11 R. 988, 27th June 1884).
Subject_Agreement — Personal or Transmissible — Heirs and Successors.
A brother and sister who were at issue as to which of them had right to succeed to an entailed estate, entered into an agreement that the sister, in case she should be found entitled to have the estates entailed on her, should “allow” to the brother “the one-half of the free rental of the estates during all the days and years of her life, and she binds and obliges herself and her representatives to make payment to him of the said free rental accordingly.” The brother entered into a similar obligation, to take effect if be should be found entitled to have the estates entailed on him. The sister was found entitled to have the estates entailed on her, and she paid half the rents to her brother till his death. Held ( rev. judgment of First Division) that she was bound during her life to continue to pay one-half of the rents to his executor.
This case is reported in Court of Session 27th June 1884, ante, vol. xxi. p. 664, and 11 R. 988.
The words constituting the agreement the effect of which was in dispute were, “that the said Thomas Holme Bankes, in case he is found to have right to the said estate of Letterewe and Gruinard, shall during his own lifetime allow the said Marian Anne Bankes half of the free rental of said estates, and he binds and obliges himself, his heirs and successors, to make payment to her of the said free rental accordingly; (2) in like manner the said Marian Anne Bankes, in case she is found to have right to the said estates of Letterewe and Gruinard, shall allow to the said Thomas Holme Bankes the half of the free rental of the said estate during all the days and years of her life, and she binds and obliges herself and her representatives to make payment to him of the said free rental accordingly.”
The pursuer A. W. Crosse, executor of T. H. Bankes, appealed.
At delivering judgment—
My Lords, it seems to me that that is the whole case, because I decline to consider what would have been the result or what would have been the construction, if, on the one hand, I had assumed that words which are not in the agreement were there, or if, on the other hand, I had assumed that words were omitted which are there. The ordinary rule of construction of an instrument is, that you should not, except to effectuate the plain intention of the parties, imply words which are not there, and that you should give effect to every word which is there if you can. It appears to me, under the circumstances of this case, that it was a very natural and sensible arrangement for the parties to arrive at, and that it was in truth effectuated by the language understood in its ordinary and natural sense, to divide what I may call roughly the life estate which the successful party should possess. Therefore, with great respect to the learned Judges below, I adopt the language and the reasoning of Lord Shand, which seem to prove beyond all doubt that the natural and ordinary interpretation of these words is what his Lordship contends for.
The result is that I move your Lordships that the interlocutor appealed from in this case be reversed, and that the appellant have the costs of the appeal.
But even if it were a gratuitous deed, that would not in my opinion alter the construction to be put upon it, because although the word “allow” occurs, we must look to the terms of the deed to see what is the quantum of that allowance, and
Well, the deed being in these terms, and there being an obligation to pay one-half of the rental, that is a debt which constitutes an asset of the creditor's estate, and passes by force of law upon his predeceasing the term of payment to his legal representatives.
I need hardly say that in the view which I take, the attempt to put a different construction upon the deed, which has been very ingeniously made at the bar, involves the necessity of introducing into the language of this deed additional words, which so far from elucidating appear to me entirely to contradict its true meaning.
Interlocutor appealed from reversed, cause remitted with a declaration that the appellant was entitled to have decree in terms of the declaratory conclusion of the summons, viz., that under the agreement the defender was bound during all the days and years of her life to make yearly payment to the pursuer, as executor of T. H. Bankes, of one-half the free rental of Letterewe and Gruinard.
Counsel for Appellant (Pursuer)— Everitt, Q.C.— Horace Davey, Q.C.— Rawlinson— C. N. Crosse. Agents— Crosse & Sons, for C. & A. S. Douglas, W.S.
Counsel for Respondent (Defender)— Cozens Hardy, Q.C.— Dickson. Agents— Waterhouse, Ambletham, & Harrison, for Murray, Beith, & Murray, W.S.