Scottish Court of Session Decisions

Lord Justice-Clerk—In this case the question is, whether the legacy of £2000, which was left under certain expressions in the trust-deed, is to be paid to Lieutenant Dunbar. The legacy proceeds upon this inductive statement:—“In the case of my not having advanced money during my lifetime to purchase a captain's commission in his regiment for the said John Dunbar.” Now, it stated in the case that a royal warrant for the abolition of purchase was issued on 20th January 1871, to take effect on 1st November 1871. The testatrix died on 8th February 1872. It was argued, that although the money was left to Lieutenant Dunbar for the purpose of purchasing a commission, that that was not a condition of his receiving the legacy, or, at all events, that if it was a condition, it was now impossible to fulfil the condition, which must therefore be held pro non scripto. It was further maintained that no party had a patrimonial interest in the condition being carried out, and the case of Skinner's Trustees was referred to. On the other hand, it was contended that the money was only to be paid by the trustees for a certain purpose, and should not now be paid, as that purpose could not now be fulfilled.

In deciding this case, I am not disposed to proceed on any general principle. I can understand that a case might arise in which, trustees being bound to pay money for a particular purpose, the legacy might fail because the purpose failed, and the benefit could no longer be taken by the legatee. But the circumstance, which is conclusive to my mind is that the testatrix executed a codicil so late as 10th May 1871. At that time there was a proposal to abolish purchase in the army, and the royal warrant abolishing it was issued in July of that year. We may presume that she intended that the legacy should be paid whether she survived the abolition or not.

But I have considerable doubt if the legatee could have said before the abolition of purchase that he would take the legacy and not fulfil the condition attached to his receiving her money.

Lord Cowan—This case radically depends upon the intention of the testatrix, and the words of bequest which she has used, keeping in view the rules of legal construction which have been recognised by the Court. The words used here are peculiar. A great deal of argument was advanced to show that the legacy was not made under a condition, but was intended merely to be paid for a certain purpose. Viewed either as a condition or a purpose, I do not think that the argument of the trustees should prevail.

Viewed as a condition, if the condition becomes impossible, the legacy is good, and the condition flies off.

Viewed as a purpose, it raises a more delicate question. The purpose may be so wrought into the substance of the bequest that, unless it can be carried out, the bequest fails. If the purpose be such that the legatee only is concerned in it, then the purpose ceases to have any effect. It was on this principle that the case of Kippen was decided. If in that case there had been attached a condition that the annuity was to be alimentary, we would not have sanctioned the principle. But we held that, as it was in the power of Miss Kippen to sell her annuity as soon as she had got it from the trustees, she was entitled to get from them the purchase-money of an annuity. Here I would have said that the trustees were bound to pay the legacy even if the legatee had obtained a captain's commission before the testator's death. But the abolition of purchase took place in the lifetime of the testatrix, and she allowed her settlement to remain untouched. I think we may therefore presume that her intention was that she wished her legacy to be paid by her trustees.

Lord Neaves rested his opinion upon the fact of the testatrix having survived the event that rendered implement of the condition impossible; and, not having altered her will, her intention was that Lientenant Dunbar was to get the money.

Lord Benholme concurred.