Scottish Court of Session Decisions

Lord President—The question in this Special Case is whether the testamentary writings left by Thomas Edmond are sufficient to convey to his wife his heritable as well as his moveable estate. This depends on the meaning of the writings themselves, and on a construction of the 20th section of The Titles to Land Act of 1868. With regard to the writings themselves, it is not impossible to spell out of them an intention that his wife should have the heritable as well as the moveable property; and I should be disposed to say that such was his intention. But that is not sufficient for the disposal of the present question, because the statute does not say, that whatever the way or manner in which the intention has been expressed, it is to have effect given to it. The clause begins by enacting that lands may be conveyed by testamentary deeds as well as by dispositions. In the second place, that no testamentary deed shall be insufficient to convey lands on the ground that the word “dispone” has not been used. Now, it would not have been necessary to have enacted these two provisions if the statute had contained a sweeping provision that any expression of intention would be enough to convey lands. The third part of the clause is thus expressed “where such deed or writing”—that is, a testamentary or mortis causa deed, or writing purporting to convey or bequeath land—“shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain, with reference to such lands, any word or words which would, if used in a will or testament with reference to moveables, be sufficient to confer upon the executor of the granter, or upon the grantee or legatee of such moveables, a right to claim or receive the same, such deed or writing, if duly executed in the manner required or permitted in the case of any testamentary writing by the law of Scotland, shall be deemed or taken to be equivalent to a general disposition of such lands.” In order to bring a testamentary writing purporting to convey lands within the meaning of this part of the clause, it is necessary that it contain words which would be sufficient to express a gift of moveables. It is not enough that the granter shall nominate an heir as he would an executor and universal legatee. It is plain that there must be words—I do not say of conveyance, but of gift—with reference to such lands, or, in other words, a gift of the lands. Here the granter does not use words of gift. He uses words of bequest of the, “whole property.” Now, if he had stopped there, we might have had a strong argument that heritable property was meant. But he goes on to derogate from the general bequest by the enumeration of “money Bonds, debets, Bussness, and other afficts whatsoever.” I think, upon the rules of construction applicable to discharges and other writs of a like description, enumeration may be held to derogate from a generality. The only word at all general which follows is “afficts.” We have already decided, in Pitcairn's case, that “effects” does not convey heritage. I am therefore of opinion that the heritable estate goes to the heir-at-law, and not to the widow.

The other Judges concurred, with the exception of Lord Ardmillan, who dissented so far as concerned the lease and goodwill of the hotel. His Lordship held that, looking at the terms of the document, the deceased had plainly meant to bequeath them to his widow, and the statute operated to the effect of making this bequest a valid conveyance.