Scottish Court of Session Decisions

Andrew Vans Dunlop, a surgeon in the service of the Honourable East India Company, died on 27th February 1880 leaving a trust-disposition and settlement dated 8th February 1879, and fourteen codicils thereto. By the said trust-disposition and settlement Dr Dunlop conveyed to trustees, of whom William Fergusson was the sole acceptor, his whole means and estate, and by the eighth purpose of the trust he directed them to pay “to Andrew Vans Dunlop Best, my nephew, if he survives me, or to his lawful issue if he predeceases me leaving lawful issue, the sum of eighteen thousand pounds sterling, declaring that in case the said Andrew Vans Dunlop shall predecease me without leaving lawful issue, the said sum of eighteen thousand pounds shall revert to and form part of my general estate at his death.” The deed further left legacies and provisions to various persons, and finally constituted the Senatus Academicus of the University of Edinburgh to be residuary legatees.

The codicil of date 17th November 1879 (which was holograph of the testator) was as follows:—“With reference to the eighth purpose of my trust-disposition and settlement, which was executed by me in Edinburgh on the 8th day of February 1879, I hereby instruct my trustees and executors that I hereby reduce the sum of eighteen thousand pounds sterling to sixteen thousand pounds sterling, which I left in that eighth purpose to my nephew Andrew Vans Dunlop Best; and this I have done from a cause with which he is well acquainted. A. Vans Dunlop.”

The codicil of date 5th February 1880 (which was also holograph of the testator) was as follows:—“In addition to the legacy or legacies left to my nephew Andrew Vans Dunlop Best in the eighth purpose of my trust-disposition and settlement which was executed by me in February last, I hereby leave him two thousand pounds sterling if my estate can afford it, and I have no doubt that it can do so. A. Vans Dunlop.”

A question having arisen upon the construction of the codicil of date 5th February 1880, the parties submitted this Special Case to the Court for opinion and judgment, Andrew Vans Dunlop, who appeared as the second party in the case, maintaining that by the terms of the said codicil, of date 5th February 1880, the restriction imposed by the codicil of 17th November 1879 was implicitly revoked, and that he was therefore entitled to payment in all of £20,000, viz., £18,000 in respect of the eighth purpose of the trust-disposition and settlement, and £2000 in respect of the codicil of 5th February 1880; while the Senatus Academicus of the University of Edinburgh, who appeared as the third party, maintained that the restriction imposed by the codicil of 17th November 1879 was not revoked, and that the second party was therefore only entitled to £18,000 in all, viz., £16,000 in respect of the eighth purpose of the trust-disposition and settlement as restricted by the codicil of 17th November 1879, and £2000 in respect of the codicil of 5th February 1880.

William Fergusson, the sole accepting trustee, appeared as the first party.

The question proposed to the Court was—“Upon a sound construction of the trust-disposition and settlement and codicils thereto of the late Dr Dunlop, is the party hereto of the second part entitled to payment of £20,000 from the party of the first part, or is he entitled to a payment of £18,000?”

It was argued for the second party—The second codicil cancelled the first and set up the eighth purpose of the trust-disposition and settlement.

It was argued for the third party that the writings must be read together. The sum to be paid was £18,000. A subsequent codicil did not revoke a prior one by implication— Green v. Tribe, June 18, 1878, 9 Chanc. Div. 231, 47 L.J. 783.