Scottish Court of Session Decisions

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 30 th January 1873.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, decerns and ordains the defenders, on obtaining from the pursuer the requisite discharge, to deliver to her the document constituting the Government annuity in her favour, No. 10 of process; as also to make payment to the pursuer of the sum of £11,13s. 5d., being the amount of the annuity to which she was entitled for the period from the 14th of November 1870, when the testator died, to the 6th of April 1871, when said Government annuity commenced to run, with interest thereof at the rate of 5 per cent, per annum from said 5th of April 1871 till paid: Finds the pursuer entitled to expenses,—reserving the question whether there should be any and what modification, until the auditor's report has been seen; allows an account of these expenses to be lodged, and remits it when lodged to the auditor to tax and report.

Note.—The Lord Ordinary has felt this case to be one of some nicety and difficulty, and he is not surprised that the defenders should have hesitated to comply with the pursuer's demands without judicial authority. He cannot doubt that they have acted throughout in good faith.

The disputed question is, whether the pursuer was, under the disposition and settlement of her late master Mr M'William, entitled to the annuity of £30 left to her by him, a morte testatoris, that is to say, from the 14th of November 1870, or whether it was to commence only nearly half a—year thereafter.

The will of the testator contains no express direction on this point; but from the nature and object of the bequest, as well as the description of the recipient, the Lord Ordinary thinks it must be held to have been his intention that the annuity should commence to run as from bis death. The additional bequest of ‘£10 for mournings, and as a provision till the first half-year's annuity shall be received by her,’ was most probably meant as something to keep her in the meantime from actual want, and so may be fairly considered as leading towards the conclusion at which the Lord Ordinary has arrived, rather than otherwise.

The Lord Ordinary is not aware of any Scotch precedent exactly in point. In the case, however, of Cruickshank v. Sandeman, Feb. 16, 1842, 5 D. 643, Lord Jeffrey observed, in regard to an annuity not expressly fixed as to the date of its commencement, that the granter of it was to be held to have given it ‘from the time the breath left his body.’ And in England it seems to be a settled rule that an annuity given by will commences immediately after the testator's death (2 Williams on Executors, 1288, and Roperon Legacies, vol. i, 872, and vol. ii, 1245 and 1344). In the case also of Houghton v. Franklin ( 1 Sim. and Stu. p. 390), it was decided that an annuity given by will, with a direction that it should be paid monthly, the first payment must be made at the end of a month after the testator's death—the Vice-Chancellor (Sir John Leach) remarking, that ‘as a will speaks at the death of a testator, it must be intended that the payment of an annual sum given by it is to commence from that period, unless there be some circumstances or expression in the will to control that intention.’

It appears that in the present case the defenders have secured for the pursuer a Government life annuity, commencing as from the 5th of April 1871, which it was stated by her counsel at the debate she was willing to accept, provided she also got payment of an equivalent in money, being £11, 13s. 5d. for the prior period; and for this sum, besides delivery of the document constituting

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