Scottish Court of Session Decisions

Various questions were raised in this case, which turned upon the construction of the trust-disposition and settlement and relative codicils of the late David Thomson, machine-maker, Leith. It is not thought necessary to report more than one of these.

The pursuer Mrs Mary Thomson or Easson was one of Mr Thomson's children by a first marriage, and she and her husband raised this action against Mrs Ann Forman Brown or Thomson, Mr Thomson's wife by his second marriage, and the other children of the testator, who were his trustees and executors. Mr Thomson's trust-disposition and settlement, which was dated February 8, 1878, was holograph, and was not prepared by a practised conveyancer, being informal and framed in popular language. After disposing of the heritable property, feu-duties, and household furniture, which he bequeathed to his wife, the deed proceeded—“All money that I should leave, wherever deposited, shall be divided amongst my wife and children, share and share alike; such division to take place when my youngest daughter arrives at the age of twenty-one years, but in the event of any of my daughters being married before that time, I leave it to my trustees to allow them such sums as to give them a suitable providing.” Mr Thomson subsequently executed a codicil to the following effect:—“It is my express wish to my trustees that my daughter Mary's [the pursuer] share of everything I leave be given to her at the rate of thirty pounds per year, payable half-yearly, as long as there is funds to pay that amount.” And on 20th June 1878 the testator executed a further codicil, which after disposing of his weighing-machine business, stock-in-trade, &c., concluded with a P.S. to the following effect:—“It is also my wish that my wife Ann Forman Brown shall receive the interest of all the moneys left by me up to the time of division of the same, as arranged for in my settlement dated the eighth day of February One thousand eight hundred and seventy-eight years.” In consequence of these deeds, and doubts regarding their construction, the present

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* See Special Case Dunsmure and Others (Dunsmure's Trustees) v. Elliot, Nov. 22, 1879, ante, p. 134.

Page: 240↓

action was raised, when the principal question argued by the parties was as to the meaning of the expressions “all money that I should leave, wherever deposited,” and “all the moneys left by me,” Mrs Easson (the pursuer) maintaining that these expressions only meant money deposited in bank on deposit-receipt or current account, and did not extend to a direction to divide the testator's other moveable estate; the defenders contending that all the testator's moveable estate was meant except corporeal moveables.

The following was an abstract of inventory given up of Mr Thomson's estate:—

“1. Household furniture	£249	4	9
2. Stock-in-trade	160	15	3
3. Money in different banks, contained in five deposit-receipts, with interest	£1416	17	7
4. Sum in bank on open account	513	19	7
	1930	17	2
5. Sums lent out to three individuals upon bill, amounting, together with interest	1307	12	4
6. Shares in Fourth Property Investment Company	151	2	0
7. Debenture Bond of Leith Heritages Company (Limited), with interest	2016	8	9
8. Sum due on mortgage on ship, with interest	589	0	3
9. Proportion of rents and feu-duty current at date of deceased's death	25	0	11
10. Sum due on policy on deceased's life	364	10	0
11. Book debts	227	4	9
12. Sum in bond and disposition in security, with interest	705	15	0
13. Interest from date of death to date of giving up inventory	32	16	3
	£7760	7	5”

Which it was maintained was all included under the above expressions.

The Lord Ordinary ( Rutherfurd Clark) on 8th July 1879 pronounced an interlocutor, inter alia, finding that the deceased Mr Thomson had disposed of his whole estate, heritable and moveable, and therefore finding on this point in favour of the defenders' contention.

His Lordship added the following note:—

“ Note.—.… 1. By his will the testator disposed of his heritable estate, and he directed that all the ‘money’ he should leave, ‘wherever deposited,’ should be divided between his wife and children, such division to take place when his youngest daughter attained majority. That event has not yet happened.

By a codicil the testator gave his wife ‘the interest of all the moneys left by me up to the time of the division of the same, as arranged for in my settlement.’ He had given separate directions for the disposal of his stock-in-trade and household furniture.

Besides his stock-in-trade and furniture, the testator left moveable estate as detailed in the fifth article of the condescendence ( supra). It may be described as consisting (1st) of money deposited in bank; (2d) moneys on loan; (3d) shares in a company; (4th) sums due under a policy of insurance on his life; and (5th) book debts. The question is, whether this portion of his moveable estate has been validly disposed of under the description of ‘money wherever deposited?’ The Lord Ordinary thinks that it has.

The will was written by the testator himself, and he expressed his meaning in popular language. The question is, what he intended the word ‘money’ to embrace. It appears to the Lord Ordinary that he meant to dispose of his whole estate, and that the word ‘money’ was used by him as including his moveable estate other than that part of it which was made the subject of special disposition. He thinks that the word is sufficient if the meaning is clear. In popular language the ‘money left’ by a deceased person is equivalent to his moveable estate, and though perhaps it might not extend to corporeal moveables, it seems to be sufficient to pass incorporeal moveables, viz., nomina debitorum and such like.” ….

The pursuers reclaimed, and argued—The testator could not be regarded as a person who had only one term in his vocabulary for all moveable estate, especially in such a case as the present, where there was such a variety of investments. In England the term “money” had been restricted to moneys in hand or at will.

Authorities— Williams v. Williams, June 1. 1877, L.R., 8 Chan. Div. 789; Larner v. Larner, April 23, 1857, 3 Drewry 704; Byrom v. Brandreth, July 23, 1873, L.R., 16 Eq. 475; Collins v. Collins, L.R., 12 Eq. 454.

Argued for respondents—The term “money” was one apt to include all the testator's moveable property, the whole will being in popular language, and not written by a conveyancer. The whole estate had been committed to the trustees, and they had to administer it. The other construction would create intestacy to a certain extent.

Authorities— Prichard v. Prichard, Dec. 8, 1870, L.R., 11 Eq. 232; Langdale v. Whitfield, 4 K. and J. 426.

At advising—