A legacy was granted, to be equally divided between two legatees. Found, that the jus accrescendi had no place in such a case
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Aleyander Rose, by his testament, provided, “That the sum of 6000 merks, due to him by Forbes of Ballogie, should be equally divided between his two brothers John and James,”
John predeceased the testator; and the question occurred, whether his share lapsed, thereby making room for the testator's next of kin; or whether it accresed to James as conjunctus verbis.
Pleaded for the pursuer's next of kin; Where a person legates his estate to A., and, in the same testament, legates that estate to B., it appears that the whole estate was meant for each; and it is only from the impossibility of giving one subject in solidum to two persons, that a division must necessarily follow. Hence, when, by any circumstance, the legacy does not take place as to one, the right of the other, meeting with no obstruction, acts with full effect. In like minner, where one bequeaths an estate to A. and B., he legates that estate to each; and any of them upon the failure of the other, is entitled to the whole. But the case is very different where the testator bequeaths an estate to A. and B. by equal parts, or equally. There the bequests to each are totally saparate; and as without any expression of that kind, the shares of the persons favoured would have been equal, this addition, which must not be deemed superfluous when any meaning can be affixed to it, must be held to signify, that each legatee is to have no more than a half. This is the opinion of Voet, and most of the Commentators on the civil law; of Stair, b. 3. tit. 8. § 27.; and of Bankton b. 3. tit. 8. § 52.; and it is confirmed by a decision, Paterson contra Patersons, No 24. p. 8070
Answered for the legatee; Had the expression equally been omitted, there could have been no doubt of James being entitled, upon failure of his brother, to the whole legacy. Neither can it be supposed, that the testator, by this expletive, meant to limit to half the right of the persons favoured. This matter is well explained by Vinnius, in his Commentary on the Institutes, lib. 2. tit. 20. § 16. ‘Qui sic legat: Titio et Sero fundum Tusculanum do, lego, ex aquis partibus, is utique conjungit utrumque in eandem rem, dum simul et semel eundem fundum ambobus legat. Nec mutat hanc conjunctionem partium æqualium expressio; nam etsi hæ partes non exprimantur, tacite tamen significanter enumeratione personarum. Quae autem non expresse intelliguntur, tamen si exprimantur, pro supervacuis habentur.’ Upon these principles, he lays it down ‘Si unus deficiat etiam in verbali conjunctione, sic mentem testatoris acceptam quasi in hunc casum alterum solidum habere voluerit, nec ob aliam causam ad eandem rem utrumque vocaverit, quam quod earn rem vel ulterum eorum magis habere voluit quam heredem swim.’
But, 2dly, Without entering into the nice disquisitions of the Roman lawyers, and attending to what was really meant by the testator, the decision of this case must be favourable to the legatee. It is evident that the testator meant to bestow 3000 merks on each of his brothers. By his own contractions, the debt due by Forbes of Ballogie is reduced to that sum; which therefore ought to be adjudged to the surviving legatee.
Replied for the testators next of kin, on the second point: The legacy bequeathed to each legatee, is the half of the debt due by Ballogie; and its decrease cannot, in sound construction, have any influence upon the right meant to be conferred on the legatee.
The Lords were of opinion, That, in legacies conceived in this form, the jus accrescendi did not take place; and, therefore, ‘they preferred the next of kin.
Reporter, Lord Kennet.For the Testator's next of kin, Ilay Campbell, Hay, Honyman.For the Legatees, Rae, Abercromby.Clerk, Home.
Fol. Dic. v. 3. p. 375. Fac. Col. No 18. p. 36.
