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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wright's Trustees v. Wrights [1889] ScotLR 26_514 (14 May 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0514.html
Cite as: [1889] ScotLR 26_514, [1889] SLR 26_514
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SCOTTISH_SLR_Court_of_Session
Page: 514↓
Court of Session Inner House Second Division.
v.
Facts:
A testator by trust-disposition and settlement left a legacy of £1000 to both A and B. By a codicil he recalled A's legacy of £1000, and gave “said sum” to B. By a subsequent codicil he renewed the legacy of £1000 to A, and made no reference to B.
Held that the additional legacy of £1000 to B had not been revoked.
The late John Wright, W.S., Edinburgh, died on 2nd November 1888, leaving personal estate to the amount of £57,579. By holograph trust-disposition and settlement he directed his trustees to pay a legacy of £1000 to each of his nephews and nieces, and, inter alios, to the Rev. Maxwell James Wright and Charles William Ferney Tod.
He left several holograph codicils to the said trust-disposition, of which the last two were in the following terms:—
“I, John Wright, Writer to the Signet, recal the legacy of £1000 to my nephew Charles Ferney Tod, and I give said sum to my nephew the Revd. Maxwell J. Wright, now minister of Dornock in the Presbytery of Annan, to be paid to him at the same time with the like legacy of One thousand pounds already given to him: Written and signed by me at Edinburgh this 19th day of May 1888.—(Signed) John Weight, W.S.”
I, John Wright, Writer to the Signet, renew the legacy of One thousand pounds to my nephew Charles Ferney Tod, to be paid to him as at the time of the original legacy; and may God have mercy upon his soul: Written and signed by me at Edinburgh this 21st day of May Eighteen hundred and eighty-eight.—(Signed) John Wright, W.S.”
A special case was presented by the trustees of the late John Wright of the first part, the Rev. Maxwell James Wright of the second part, and the residuary legatees of the fourth part, to have the following question of law determined by the Court—“Is the second party entitled to the legacy of £1000 bequeathed to him by the codicil of 19th May 1888, in addition to the legacy of £1000 left to him by the settlement?”
Argued for the first and fourth parties—The second codicil restored the will to its original state. The testator dealt with the £1000 to Charles Ferney Tod as a specific legacy. He moved it about as if it had been an article of furniture. He gave it, he took it away, he renewed it. It was the same gift, not £1000, but the “said sum,” and when it had been restored to Charles Tod, Maxwell Wright ceased to have any interest in it. The question ought to be answered in the negative.
Argued for the second party—The question ought to answered in the affirmative. This was not the legacy of a specific article, but of £1000. There was nothing to show that because the testator had repented of taking away the legacy from Charles he had also repented of giving an additional £1000 to Maxwell. The said codicil was a renewal of Charles' legacy, but not a revocation of Maxwell's legacy.
At advising—
The question for decision is, whether the renewal of the legacy to Tod implies, and necessarily implies, that the gift of the second thousand pounds to Maxwell Wright was recalled? for unless that is necessarily implied I think the gift to Mr Wright must stand. Now, it is not easy to decide this question, but there are, I think, two grounds for holding that that implication is not necessary, and if it be not necessary it cannot be implied. In the first place, as Lord Lee suggested during the debate, if the object of the codicil of 21st May 1888 was to restore matters to the condition in which they had been two days previously, there was no necessity for giving it the form of a new codicil at all. All the testator had to do was to revoke the codicil of 19th May. In the second place, it by no means follows from the testator's repenting of the act by which he deprived Charles of £1000 that he repented also of giving to Maxwell £2000. He had, for reasons satisfactory to himself, given £2000 to Maxwell (instead of £1000) on 19th May, and there is nothing to indicate that in the following two days he had repented of that. The giving to Charles again his legacy of £1000 was quite consistent with the legacy to Maxwell of the £2000 remaining valid.
Therefore I think that the codicil of 19th May must receive effect in so far as it gives to Mr Maxwell Wright £2000.
Page: 515↓
The Court answered the question in the affirmative.
Counsel for the First and Fourth Parties— Wallace— Sym. Agents— Traquair, Dickson, & Maclaren, W.S.
Counsel for the Second Party— Sir C. Pearson— Guy. Agent— David Turnbull, W. S.