Scottish Court of Session Decisions

Now, without going into any detailed analysis of the words of the deed, I am quite satisfied that the words were chosen with a view to a possible divorce. What is the meaning of the words in the provision for payment of the annual proceeds which I have just quoted if read according to their natural meaning. Mr Scott says that the meaning is that if the marriage were dissolved by divorce the wife was to have the fee during the life of both, the marriage being terminated; if the marriage was not terminated by divorce, then the wife was not to get the fee till the death of her husband. The Dean of Faculty says the meaning is, that the father had in view the possibility of a divorce, and that the meaning of his words is that even in the event of a divorce the wife was not to become entitled to the fee of the property until the natural death of James Mason.

In regard to the latter part of the clause, relating to the period at which the rents were to be paid, it seems to me expressly to dissociate that term from the dissolution of the marriage by divorce, and to fix it specially at the date of the husband's actual death. The clause relating to the fee is also ambiguous, but I am inclined to arrive at the same view of its meaning, that what the testator had in his mind was the natural death of James Mason. Though it is impossible to say that this meaning is clearly expressed, I am of opinion—distinctly so—that the Lord Ordinary is right, and that the testator, to guard against the possibility of the husband having at any time any interest whatever in the fee, and having in his mind the possible contingency of divorce, used the words he did for the express purpose of meeting this contingency.

At first I did not see how this could have affected the testator's mind, but I have since come to see that the divorce being in absence, the friendly letters passing between his daughter and her husband, and the other circumstances of the case (cf. 14 S.L.R. 592) might have weighed with him in keeping the husband out altogether, and in making the term of payment the date of the husband's natural death.

In conclusion, I may say that I do not think the children have any jus quœitum whatever.

Lord Ormidale—I have come to the same conclusion as your Lordship. In construing this deed it is of great importance to keep in view that it is not a marriage-contract, or granted in any way intuitu matrimonii. If it had been, then a rule of construction would have been introduced which has nothing to do with the matter as it comes before us. The deed was executed fifteen years after the pursuer's marriage, and its object seems to me to be to counteract the effect the marriage had in so far as it gave the husband an interest in his wife's succession. The law regulating marriage-contracts and all such deeds is therefore out of the question, and we come to the construction of this deed independently of that element.

Now, it is not unimportant that whereas we have language in the deed expressly pointing out the actual death of one or other of the parties, we have had no case quoted in which the natural meaning of the ordinary word has been construed to mean anything different, except in the three cases relating to the marriage-contracts.

As to the consideration of what was the testator's intention, I am not much affected by it. I do not think we have anything to do with that consideration if the language of the deed is otherwise clear. A testator may be fantastical or absurd if he pleases, but that does not entitle us to interfere if his language is otherwise clear. But I think it is not unnatural that the testator here might have had it in view that there was a possibility of a divorce, and even that the husband might return afterwards and be desirous of uniting himself with the pursuer again. There being nothing therefore in this deed to enable us to construe it differently from what its own language imports, I think it clear that the natural death of the husband is what was intended, and that therefore we should adhere to the Lord Ordinary's interlocutor. I must add that I think that the children's interest might be materially affected if we decided differently.

Lord Gifford—I do not differ from your Lordships, but perhaps I have felt more difficulty in coming to a decision. I agree that this is not a case relating to husband and wife in consistorial law; it is merely a question of construction of a deed. But this does not exclude the idea that the testator may have looked to divorce as being equal to natural death so far as the marriage was concerned, and so meant his deed to be construed. But where I am compelled to agree with your Lordships is, that the words used have reference to the actual death of the husband even after the possible contingency of divorce. But I may say that I should not have been at all embarrassed even though “death” were the only term used in holding divorce equivalent to it if the other facts of the case were consistent with this interpretation.

I think it very difficult to say that I could not reach the intention of a testator in any other way than through his actual words. I can conceive a case of an annuity to a wife payable on the death of her husband being paid on divorce; but it is unnecessary for me to go on multiplying examples, as in the present case, as I have stated, I am constrained, for the reasons I have, given to con—our with your Lordships.