Scottish Court of Session Decisions

When the clause is taken by itself, nothing can be clearer to my mind than the intention of the testator. I do not say that a testator who writes his own will, and is not a lawyer, is in all cases to be held to have rightly apprehended the meaning of technical words which he may have used on the occasion of making his will; but I think it is plain that a testator who uses words which have an intelligible conventional meaning is not to be held as having used the words with any other meaning unless the context of the instrument shows that he intended to do so.

In this case nothing can be more simple than this clause of the will. It commences with an unqualified bequest, making no reference to the time at which it is to operate, of the estate of Bankhead in favour of Watson. I need hardly say that where such a bequest occurs it must take effect á morte testatoris, except in one or other of these two cases—namely, where to give effect to it from that date would disturb any of the provisions already made in the will, or where the testator has clearly indicated, either by express words or by plain implication, that he did not intend it to operate until a later period—the death of the widow.

Then, so far as regards the condition attached, introduced by the words; “I wish it expressly understood,” they refer to one period, and one period only—the death of Watson; and upon his death, without mention of any other death or any other event which is to be taken into computation along with it, there is a provision that the property shall revert. I need not say that, in the absence of any context to control the meaning of these words, “revert back,” they plainly point to the case where, a beneficiary having taken under the will, the estate which he took is not to descend to his heir-at-law, or to a person appointed by his will, but is to go back to some person favoured by the testator. Accordingly, in order to give the meaning to this clause which is requisite if the appellant is to succeed, I find from the very able and elaborate arguments which have been addressed to us by the learned counsel on his behalf, that it is absolutely necessary, in the first place, to discharge from the clause the ordinary meaning of some of the words which it employs, and, in the second place, to introduce into the clause words which are not to be found in it, and are not connected with it by reference to other parts of the deed. The gloss which they desire to put upon it, according to one of several constructions more or less plausible which they suggest, is, “I also leave to my nephew James Francis Watson, at the death of my widow, my estate of Bank-head; but I wish it expressly understood that in the event of my said nephew James Francis Watson dying during the life of my widow without leaving any lawful male heir of his body;” and when you come to the latter part of the clause, you are required to do this violence to the text, that instead of making the estate go back from one who has taken it already, it is to go to a substitute because the institute has failed to take.

These are very considerable alterations.

I do not intend to refer to any other of the theories put forward; but they appear to me conclusively to shew that it is impossible to adopt the construction which has been suggested by the appellant without doing extreme violence, in the first place, to the meaning of some words in the text, and, in the second place, by bringing in words from outside the instrument which are not to be found within it. After giving the liferent of the entirety of his estate to his widow, the testator declares, “at the death of my wife said annuity to cease.” It is perfectly plain that these words are introduced into that part of the text of the will for the purpose of indicating the time at which Mrs Hamilton's annuity, chargeable upon the widow's liferent, is to cease, and her new right as a liferenter of the lands which are given in fee to her sons is to begin. I cannot for a moment suppose that those words were intended to apply to all the subsequent clauses of the deed. I find that the remaining bequests are stated as distinct and substantive gifts, entirely independent of that reference to time as affecting the annuity of Mrs Hamilton. And then when he has concluded this destination of the estate of Bankhead to James Francis Watson, the testator proceeds to deal with the division of his moveable estate: and it being necessary to specify a time, he again introduces the words, “at the death of my said wife my moveable estate is to be equally divided.”

Various theories of construction have been discussed, some of them not very much akin to the question which we have to decide in the present case. I think that the whole substance of the grounds upon which I am prepared to recommend your Lordships to affirm the judgment appealed from is to be found in a single sentence of Lord Rutherfurd Clark's opinion—“I think that it came into operation from the testator's death; there is no other time assigned.”

I do not think it necessary to trouble your Lordships with any reference to that class of cases of which the most recent is Glendonwyn v. Gordon, Law Reports 2 H. L., Sc. 317. It refers to a rule of the law of Scotland to the effect that a general conveyance is not in all cases held to carry estates settled by special destination. But the rule goes no further than this: that a general disposition will presumably carry all lands previously settled under a special destination which the truster or testator has power to dispose of. In order to deprive his general disposition of that effect it is the duty of the litigant who says that the special destination has not been defeated, to show to the satisfaction of the Court, either by the terms of the testator's settlement or by other documents to which it is

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