Scottish Court of Session Decisions

The conveyance is taken in the first instance to testamentary trustees, who are directed to make over the heritable estate to Robert Grant, “on his attaining the years of majority, his heirs and assignees, for ever.” The bequest of the residuary estate is somewhat differently expressed; for it contains an unconditional nomination of Robert Grant as residuary legatee, and then a direction to the trustees, upon his attaining the age of twenty-one, “to dispone, convey, and make over to him, his heirs and assigns, the whole residue of my means and estate not otherwise specifically disposed of by these presents.” The question is, Whether either or both of these bequests will lapse if Robert Grant should not attain the age of twenty-one, according to the brocard, “ Dies incertus in testamentis conditionem facit.”

This question belongs to a class that has been very largely discussed in the law of Scotland, and one to which it is difficult to lay clown any general rule, so much depends on the indication of the testator's intention, as disclosed in his settlement. Unquestionably where an uncertain term,—that is to say, a term which may or may not arrive,—is adjected to a testamentary gift or bequest, the presumption is that the legatee's survivance of that term is a condition of his right. It may be otherwise, but not necessarily otherwise, where the term is in words adjected not to the gift itself, but to the payment or enjoyment of it. In the Roman law this distinction was allowed great weight, and Voet in his Commentary lays the rule down thus:—“ Conditioni similis est dies incertus: nisi tantum solutionis non obligationis morandæ gratia adjectus sit,” B. 28, t. 8, s. 32. In the earlier cases which were quoted to us from the bar, especially in those of Omey, Sempil, and Home, this distinction was controverted, and perhaps with reason. But still it was clearly laid down in Sempil's case, and still more clearly in the subsequent case of Wood, reported by Hume, p. 271, that these presumptions must yield to the manifest intention of the testator. Indeed it cannot be doubted that before the uncertain term can operate as a condition of the gift it must be attached or adjected to the gift, and that an uncertain term may be attached to the payment of a gift, while the gift itself is intended to take effect and to vest at the testator's death. An example of this is to be found in the most recent and important of the cases quoted to us, that of Ralston, in the 4th vol. of Dunlop. It may perhaps be safely said that one main element in determining how far an uncertain term is adjected as a condition of a legacy, is to consider who is burdened by the legacy, and in whose favour the condition is conceived. An ulterior destination of a specific legacy will go far to solve the question against the legatee; while a bequest of residue to a third party will have a similar, but by no means so conclusive an effect. But if no one but the heir-at-law, or the next of kin, succeeding ab intestato, is burdened by the legacy or benefited by the alleged condition, the presumptions will be strongly the other way.

Applying this view to the present case, I have not found the solution of it attended with difficulty on either of its branches. It is true that in the case of the heritable estate the uncertain term is in words adjected to the gift itself. But I am of opinion, notwithstanding, that it was so adjected for the benefit of the legatee alone, and with the object solely of delaying the enjoyment of the gift, which was to take immediate effect. My opinion proceeds on these considerations,—1st, That the cause of granting implies that it was the testator's fixed intention that the family of Grant should benefit by the bequest. 2dly, That in pursuance of that intention the gift is taken to Robert Grant, his heirs and assigns, for ever, the latter words being such as could receive no operative effect on any other construction. 3dly, There is no other person expressed who on any contingency is to benefit by the gift. And lastly, and to my mind quite conclusively, the only general representative contemplated by the deed as the person who would be burdened by the gift and benefited by the condition, is Robert Grant himself. And as it would be absurd to provide a condition in which no one had an interest excepting the party bound by it, I conclude that no such condition was contemplated. Otherwise the condition was one to take effect only in the event of intestacy, which is not to be presumed.

Even, however, if I had more doubts on the first of these questions, I can find no room for doubt on the second. The residuary clause presents a very good example of an absolute gift with an uncertain term attached to the payment of it. The nomination of Robert Grant as residuary legatee is unconditional,—the direction to the trustees to pay is alone limited by the uncertain term. Thus, in this instance both the words and the intention coincide. If there be a condition in the destination of the heritage, it is one in favour of the residuary legatee, who takes everything heritable and moveable not otherwise specifically disposed of; and therefore whatever Robert Grant fails to take under the first clause vested in him a morte testatoris under the residuary bequest. As a general rule, the presumptions in question will tell more strongly in favour of, and more feebly against, a residuary legatee than in the case of a specific legacy, seeing that a testator is always presumed to test on the whole of his property; and the character of residuary legatee is in itself inconsistent in some measure with a postponed term of vesting, unless very clearly provided. But this clause hardly requires the aid of this distinction.

Lord Neaves—I concur. In regard to wills generally, the great leading principle is to discover and give effect to the intention of the testator. This is a wide and vague rule, and no doubt the law has adopted certain special rules and presumptions which are supposed to be of use in arriving at that intention. And there is no doubt that the Roman law and our own adopted the view that the adjection of a dies incertus is presumably a suspension of the right until the dies should arrive, which is then held to be a condition of the gift. But this is merely a presumption, and there may be circumstances

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