Scottish Court of Session Decisions

Lord Justice-Clerk — [ Having stated the facts]—I am unable to read this clause as giving a new legacy of the rents of Thornhill lands to the widow. That result can only be reached by implication, and I see no reason for such an implication. I think the clause means this only, that the trustees are to apply the rents of Thornhill lands so far as they may go to payment of the annuity, and in this way to relieve the moveable estate to that extent of the burden of paying the annuity, so that only so much of the moveable estate is to be retained as will be sufficient to meet the balance of the annuity. Therefore I propose to answer the first question in the negative.

Lord Young—I may say I am generally of the same opinion. I cannot say however that the decision of the first question is altogether free from difficulty. The question is whether the widow Mrs Chivas is entitled under two deeds by her late husband, in addition to a liferent of £575, to the liferent of the house and grounds of Thornhill House? She is certainly not entitled to any such liferent under the original deed, but it was contended—and I cannot say without plausible grounds for the contention—that she was so entitled under a codicil. This codicil is in the form of a letter by the testator to his trustees, by which he indicates his intention to make certain alterations on his original settlement, and which he desires should be carried out if he does not find any opportunity of putting them into a more formal deed with the help of a practised conveyancer. I think any document of that kind should be read liberally and with a desire to carry out what was the intention of the testator.

Now, it is clear, when he wrote this codicil that he intended his widow should have an annuity of £500, and that his trustees should lay aside sufficient funds to pay this annuity, and so intending, he directs the free rental of the lands to form part of the annuity. Now, there are difficulties in holding that he intended this liferent should be held by the trustees only as part of the funds put aside to meet the payment of the £500 annuity, and therefore I say it is a plausible contention that he meant his wife's income should be increased by the rent brought by the villa and grounds. That contention receives some confirmation from a clause which occurs later in the codicil, that after his wife's death the free rental of Thornhill is to be divided equally among his four children. But on the best consideration I have been able to give to the subject, I have come to the conclusion that it would be unsafe to read this provision as giving the rental of Thornhill to his widow, in addition to the annuity formerly provided for her. To do so would mean that we should read into the codicil the words “in addition to” instead of “form part” of the annuity.

Then with respect to the argument that there is an implied gift of the liferent of Thornhill to his wife by the delay which he says is to take place in the payment of it to his children, that would have been very strong if it had not been for the previous words which explain the reason for delaying the payment until her death.

Lord Trayner concurred.