Scottish Court of Session Decisions

By holograph will and testament, dated 18th March 1884, George Johnstone Wallace of Newton Hall, Fifeshire, bequeathed to his nephew, Adolphus Wallace, “the estate of Newton Hall, in the parish of Kenno-way, Fifeshire, Scotland, with farm live stock and farm implements, &c., and, with the said estate, the mansion-house, also the furniture and household furnishings, pictures, &c., subject, however, to the following conditions, viz.—That the mansion-house

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with its furniture shall remain and be held by Annie Amelia Wallace for her use and benefit, and for the use and benefit of her sister Margaret Wallace, and for the use and benefit of her sister Priscilla Isabella Wallace, so long as they remain unmarried.”

He further bequeathed to his niece Annie Amelia Wallace, “as a token for her devoted attention to my every want since I returned from India,” certain heritable property in India to the value, as then estimated, of £10,000. The residuary clause was as follows:—“I leave as my residuary legatee my niece Annie Amelia Wallace, who will pay my funeral expenses and any debts I may justly owe.” Miss Annie Amelia Wallace was also named one of his executors. There were no trustees appointed under the will.

The testator died on 24th June 1895. He left no other heritable estate than was specified in his will. He was predeceased by Adolphus Wallace, who died, unmarried and without issue, on 1st November 1894. Adolphus Wallace, if he had survived the testator, would have been his heir-at-law. The testator was aware of his death, but made no new provision as to the bequest, which had lapsed by his death.

In these circumstances questions arose as to who was entitled to the estate of Newton Hall, and to the moveable subjects included in the bequest of that estate. For the settlement of these questions a special case was presented to the Court by (1) the executors; (2) Annie Amelia Wallace, the residuary legatee; and (3) James Newton Wallace, the testator's heir-at-law.

The questions of law were:—“I. ( a) Is the heritable estate of Newton Hall, comprised in the lapsed bequest to Adolphus Wallace, carried, subject to the liferents, by the bequest of residue in favour of the second party? or ( b) Is the third party, subject to the liferents, entitled as heir-at-law to the heritable estate comprised in said bequest to Adolphus Wallace? II. ( a) Are the moveable subjects comprised in said bequest to Adolphus Wallace, subject to the liferents, by the bequest of residue in favour of the second party? or ( b) Are the first parties entitled, subject to the liferents, to hold the moveable estate comprised in said bequest to Adolphus Wallace for behoof of the testator's whole next of kin?”

Argued for the third party—The special bequest of Newton Hall having lapsed, that estate became intestate succession, and fell to the third party as heir-at-law of the testator. It did not go to the residuary legatee. A “residuary legatee” was a person to whom the residue of the moveable estate was granted; the term was not applicable to a person taking heritage. The whole tenor of the deed showed that the testator's intention was that his niece should get the residue of his moveable estate alone. Executors were appointed, which showed that the testator had in view that moveable property alone was to be dealt with. And the appointment of the residuary legatee was coupled with payment of debts and funeral expenses, which fell to be paid out of moveable estate—Ersk. Inst. iii. 9, 6; Urquhart v. Dewar, June 13, 1879, 6 R. 1026; Campbell v. Campbell, November 30, 1887, 15 R. 103; Grant v. Morren, February 22, 1893, 20 R. 404.

Argued for the second party—The 20th section of the Titles to Lands Act 1868 was directly in point. Words had been used in a will dealing with the whole heritable estate of the testator, which, when applied to moveables, were sufficient to confer on the legatee the right to receive the same. These words were, therefore, equivalent to a general disposition of any portion of the heritable estate, which, by reason of the failure of the specific bequest, fell into residue. Besides, the will expressly showed that the residuary legatee was a person for whom the testator had a special regard, while the heir-at-law, who now claimed the estate, was not mentioned in the will at all. The death of Adolphus Wallace was known to the testator, and he could have altered his will by a codicil if he had wished any other than his residuary legatee to succeed. The presumption of law was always against intestacy, and the whole tenor of the will showed that by it the testator intended to dispose of his whole estate, both heritable and moveable— M'Leod's Trustees v. M'Leod, February 28, 1875, 2 R. 481; Forsyth v. Turnbull, December 16, 1887, 15 R. 172. In all the cases quoted on behalf of the third party's contention, with the exception of Campbell, the will dealt with moveables alone. In the case of Campbell, the reading of the will as making a bequest of heritage was an impossible reading, being inconsistent with the other terms of the deed.

At advising—