Effect of failure of the end in view in granting a deed.
James Waddell, &c v. William Waddell
Date: 19 December 1738 Case No. No 31.
A legacy was granted to a person abroad, he coming home to receive it. The legatee died abroad after the death of the testator. Found that he not having come home, the legacy was not due.
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George Waddell of Abovethehill, disponed certain lands to William Waddell his brother, with the burden of 3000 merks to the children of George Waddell his nephew, to be divided amongst them, according to the proportions therein specified; and, amongst the rest, there was one in the following terms; ‘To George Waddell sailor 800 merks, he coming home to receive the same.’ The said George Waddell (son to George the nephew), to whom the sum was left, outlived the devisor, but died abroad; whereupon a process was brought at the instance of his Executors, against William, for payment of the 800 merks.
Objected for the defender; That the legacy was conditional, in case the legatar came home to receive the same. Answered; The meaning of these words was none other but the better to secure payment to George, that it might not be lost by remitting it to him abroad; or perhaps it carried an admonition or invitation to him to come home. To illustrate which, the case was put, That the testator had said with respect to this legacy, he granting a factory to receive the same. Surely his death before the factory was granted, would not have annulled the legacy, and no more ought his not coming home, seeing his executors in his right might still receive it, conform to L. 85. D. De condit. et demonst. L. 48. D. De verb. obligat.
Replied; The words of the clause are of the same import, as if it had said to, in case he come home to receive the same; for, in common sense, as well as in law language, the ablative, put absolutely, has the force and effect of a condition; and the supposed case, That the testator had adjected to the legacy these words, ‘he granting a factory to receive it,’ is no ways applicable to the present question; seeing no other rational sense could be put upon such a clause than this, that the testator was willing it should be paid to George's factor, though he continued abroad: But, in all cases of this nature, reason and common sense must be the guide, for explaining when a condition is understood to be meant, when not; and here no meaning can be put upon the words other than to imply a condition; the testator intended that his money should not be carried out of the kingdom, and spent abroad, but to be enjoyed by the legatar, in case he came home and lived among his friends: But, even if the intention was, as the pursuers allege, the better to secure payment of the legacy, that it might not be lost, or as an admonition to George to come home, still these show that the legacy was made conditional.
The Lords found, That the legacy to George Waddell sailor, was conditional, viz. in case he came home to receive the same; and that he never having come home, the condition failed, and consequently the legacy was not due.
