Scottish Court of Session Decisions

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Cite as: [1899] SLR 36_445, [1899] ScotLR 36_445

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Saturday, February 25. 1899.

36 SLR 445

Ferrier's Trustees

v.

Ferrier.

Subject_1Succession
Subject_2Testament
Subject_3Inchoate Intention
Subject_4Residuary Clause — Intestacy — Extrinsic Evidence.
Facts:

A domiciled Canadian left a will by which he gave his second wife the liferent of a piece of ground in Canada and his household furniture and effects absolutely. The will then stated that whereas by the will of his first wife the testator was the owner of certain heritable property in Scotland, and had received 4000 dollars of personal estate, in order to carry out his first wife's wishes, “I do hereby declare that I intend to execute a will in accordance with the law of Scotland, devising said real estate in Scotland to Ferrier Pace of Kirkliston, Scotland, farmer, his heirs and assigns, and have hereinafter devised a sum of 4000 dollars” to certain relations of his wife; “I give and devise all my estate, both real and personal, not hereinbefore specifically devised” to his trustees for certain trust purposes, which included the payment of the 4000 dollars to his wife's relations.

The testator never executed any will leaving the heritable property in Scotland to Ferrier Pace, although a mortis causa disposition doing so had been prepared and sent to him for execution five years before his death.

Held (1) that the heritable property in Scotland was not carried by the will to Ferrier Pace, and (2) that it did not fall into intestacy, but passed to the trustees in terms of the residuary clause.

Headnote:

William Ferrier, who was a domiciled Canadian, died on 16th February 1897, in Canada. He stood infeft at the time of his death in certain heritable property in Kirkliston, Linlithgowshire, Scotland, which he had acquired on the death of his first wife Mrs Julia Ferrier. The said property had been in the Ferrier family for sixty or seventy years, part of it having been purchased in 1826, and the remainder in 1832 by Mrs Ferrier's father Robert Ferrier, and he and his family were successively the proprietors thereof until Mrs Ferrier's death in 1889.

William Ferrier left a will whereby he gave and devised to his second wife Mary Rogerson Ferrier the liferent of a lot of ground in the town of Barrie aforesaid, and gave and bequeathed also to her for her sole use absolutely all the household furniture and effects of which he should die possessed. The will then proceeds to state—“And whereas by the will of my late wife Julia Ferrier I am the owner of certain freehold property in Scotland, and also received about the sum of four thousand dollars of personal estate after payment of all expenses in connection therewith: And whereas, although absolutely entitled to
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the said real and personal estate of my said late wife Julia Ferrier, I am desirous of carrying out certain wishes of the said Julia Ferrier as expressed in a memorandum left by her with me, but which was not to be binding upon me in any way: Now to carry out the said wishes of the said Julia Ferrier, I do hereby declare that I intend to execute a will in accordance with the law of Scotland devising said real estate in Scotland to Ferrier Pace of Kirkliston, Scotland, farmer, his heirs and assigns, and have hereinafter devised a sum of four thousand dollars to the parties mentioned in said memorandum in the amount and proportions as described by said memorandum; I give and devise all of my estate both real and personal not hereinbefore specifically devised unto my executors hereinafter named and the survivor of them, and the executors of such survivor, upon the following trusts.” The trusts were then specified, and included the payment of 4000 dollars to various relations of Julia Ferrier “for the purpose of carrying out the wishes of the said Julia Ferrier.” The testator further declared that the provision made for his wife Mary Rogerson Ferrier should be in lieu of all dower to which she might be entitled out of his real estate. The testator then nominated and appointed executors and trustees of his will.

The “Freehold Property” referred to in the will of the said William Ferrier was the said heritable property in Kirkliston. Ferrier Pace was a nephew of Mrs Julia Ferrier. The testator did not carry out his intention as declared in the will “to execute a will in accordance with the law of Scotland devising said real estate in Scotland to Ferrier Pace,” although a mortis causa disposition to give effect to this intention had been prepared by a solicitor in Edinburgh, and sent on 4th November 1892 to the testator's solicitor in Barrie for execution.

After Mr Ferrier's death the testator's widow accepted the provisions conferred on her by the will, and the trustees and executors accepted office and proceeded with the administration of the estate. A question arose in the course of their administration as to whether the heritable property in Kirkliston aforesaid was carried by the will to the trustees and executors, or whether it passed under the will to Ferrier Pace, or whether it was undisposed of by the will and descended to the testator's heir-at-law.

For the settlement of the question a special case was presented to the Court by (1) Mr Ferrier's trustees, (2) Mr Ferrier's heir-at-law, (3) Mrs Mary Rogerson Ferrier, and (4) Ferrier Pace.

The questions at law were—“(1) Is the said heritable property in Kirkliston, Scotland, carried to the first parties by the will of the said William Ferrier? Or (2) Is the fourth party, the said Ferrier Pace, entitled to it under said will? Or (3) Does it descend ab intestato to the second party as the testator's heir-at-law in heritage?”

Argued for fourth party—The testator in the will sufficiently manifested an intention that the property should pass and belong to him (the fourth party), and in virtue of the will he was entitled to it. A clear indication of intention was all that was required, and such was shown here. The only object of making a declaration of intention in this will was to allow the intention to receive effect if the testator died before executing the formal deed— Hamilton v. White, June 15, 1882, 9 R. (H.L.) 53, opinion of Lord Selborne, 57; Colvin v. Hutchison, May 20, 1885, 12 R., opinion of Lord President Inglis, 955; Forsyth v. Turnbull, December 16, 1887, 15 R. 172; Theobald on Wills, 4th ed. 12; Jarman on Wills, 5th ed. i. 23 and 98; Jordan v. Fortescue (1847), 10 Beavan 259; Farrar v. St Catharine's College, Cambridge (1873), L.R., 16 Eq. 19.

Argued for second party—(1) The heritable property in Scotland had not been devised to the fourth party. It did not fall under the class of cases in which the Court had spelt out of ambiguous words a bequest on the part of the testator. It was neither a bequest by implication or a precatory bequest. The testator said he meant to do something, but he never carried out his intention. The clause showed that it was the intention of the testator to execute a formal deed, But he had never executed such a deed, and his intention must be held to have been departed from. The Court could not interpose and make a will for him— Mathews v. Warner, 1798, 4 Vesey Jr., 186, opinion of L.C. Loughborough,209; Hamilton, supra. In the present case it was admitted that a formal will carrying out his intention had lain beside him for years and had never been executed by him. That accentuated the contention that the testator had departed from the intention expressed in the will under dispute. (2) The Kirkliston property fell into intestacy, and was not conveyed by the residuary clause. The scheme the testator had in his mind was that the property should go to his wife's relations. “Specifically devised” in the residuary clause referred to property in Canada. The property in Scotland consequently descended to the second party as heir-at-law in heritage of the testator.

Argued for first parties—The property at Kirkliston was carried to them by the will whereby the testator gave and devised to his executors all his estate, both real and personal, not thereinbefore specifically devised. Such gift and devise carried this property to them in respect it was not thereinbefore specifically devised, and the testator never gave effect to his expressed intention to dispose of it by a separate will.

Judgment:

Lord Justice-Clerk—I think it will be convenient to take first the second of the questions stated in this special case. The second question is in these terms—“Is the fourth party, the said Ferrier Pace, entitled to it”—that is, the property at Kirkliston—“under the said will?” That question depends on a clause in the will by which the testator declares “that I intend to execute a will in accordance with the law

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of Scotland devising the said real estate in Scotland to Ferrier Pace,” Now, it is quite true that a testamentary writing is an expression of the testator's intention with respect to his property, and the word intention is very often used to express present intention to do something, as, for example, when a testator says “My will and intention is” so and so, that is expressive of present intention. But in this case it is quite evident that the word is used with a future and not a present application—that it is expressive of what the testator intends to do hereafter. I think that he intimates in the first place what are his present views with respect to the disposal of this piece of property, and that he further intimates his intention to express these views effectively by a deed to be executed in the future. It is a somewhat curious circumstance that the testator had before him for several years prior to his death a deed carrying these views into effect, and that he never executed this deed. The natural conclusion, I think, is that his intention with respect to this property never took and was never meant to take practical effect. I think, therefore, that the second question should be answered in the negative.

The next question is, To whom is the property to go if it is not to go to Pace? Does it fall under the last clause in the will? or has the testator failed to execute any testamentary disposition of the property at all. I am of opinion that it is effectively disposed of under the residuary clause of the will, by which the testator disposes of all that is “not hereinbefore specifically devised.” Now, it is clear that this property is not one of the things which are “hereinbefore specifically devised,” and it is also well established that intestacy is not to be inferred unless the deed will not bear any other construction. That being so, I am of opinion that the residue clause is expressed in terms sufficiently wide to carry this property. I am therefore of opinion that we should answer the first question in the affirmative and the third question in the negative.

Lord Young—I attended to the argument as carefully as I could, and with every disposition to find any ground for giving the heritable property in Scotland to Ferrier Pace. But I am unable to find any sufficient ground for doing so. The fact that a deed for the purpose of carrying out the intention expressed in his will was sent to the testator and that he never executed it throws great doubt on the question whether the intention expressed in the will continued to be his intention up to the date of his death. Indeed, I think we must assume that the testator intentionally and deliberately abstained from executing the formal deed sent to him. The second question must therefore be answered in the negative.

As regards the first question, whether the heritable property in Kirkliston is carried by the will to the first parties, the testator in his will gives to the trustees all his estate, both real and personal, not thereinbefore specifically devised. If, therefore, this property is not specifically devised in the will it is carried to the trustees. It has been argued that the following words are tantamount to a specific devise—“I do hereby declare that I intend to execute a will in accordance with the law of Scotland devising said real estate in Scotland to Ferrier Pace.” If these words were struck out there would be no question whatever that this property was carried by the will to the trustees. I see no ground for coining to any other conclusion than that the will must be read as if these words were struck out. I therefore am of opinion that the first question must be answered in the affirmative and the third in the negative.

Lord Trayner—I am of the same opinion. I have been unable to feel that the case presents any serious difficulty. The will is habile to convey the whole estate of the deceased, and under the last purpose all property not “hereinbefore specifically devised” is carried to the trustees for the purposes there specified. Unless, therefore, this property in Kirkliston is specifically devised it passes to the trustees under this provision, and if it is, the idea of intestacy is necessarily excluded. Nor do I think that the question whether this property has been specifically devised to Mr Pace presents any difficulty. The word intention, no doubt, is an ambiguous word. We are, of course, familiar with the rule which says that in construing a will we are to give effect to the intention of the testator. But I have never heard that it is our duty to carry into effect an intention which the testator has done nothing to effectuate, but which he has merely expressed the intention of doing something to effectuate at a future date. I think that that is all that we have here. I say this altogether apart from the very important circumstance that the testator had before him for several years before his death a deed disponing this estate to Mr Pace which he never executed. The inference, I think, is that he changed his mind in regard to the disposition of this property.

Lord Moncreiff—I am of the same opinion. I think that the distinction between what the testator intended to do and what he actually did is focussed in the passage in this will where the testator says that he intends to execute a will as to the heritable property in question, and that he has hereinafter devised the sum of 4000 dollars. That shows the distinction between an intention to execute a deed in the future and a present testamentary intention. I quite agree as to the inference to be drawn from the circumstance that the deed dealing with the estate in Kirkliston remained in his possession unexecuted from 1892. I think that the reasonable inference is that he changed his intention in regard to that property.”

On the question whether the property in Kirkliston fell into intestacy or passed under the residuary clause to the trustees,

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there is, I think, room for argument, because at the time the testator wrote his will it was undoubtedly not his intention that this property should pass under the residuary clause. But, on the whole, I think that the presumption against intestacy is too strong.

The Court answered the first question in the affirmative, and the second and third in the negative.

Counsel:

Counsel for the First Parties— A. S. D. Thomson. Agent— Andrew Newlands, S.S.C.

Counsel for the Second Party— J. H. Millar. Agent— John Simpson, Solicitor.

Counsel for the Third Party— Sandeman. Agents— Macpherson & Mackay, S.S.C.

Counsel for the Fourth Party— John Wilson. Agent— Andrew Newlands, S.S.C.
1899