Scottish Court of Session Decisions

Francis Wood Clark and another, trustees acting under the trust-disposition and settlement of the deceased Mrs Margaret Scotland or M'Lachlan, who resided at 89 Lochleven Road, Glasgow, widow of the late Donald M'Lachlan, Venetian blind manufacturer, Glasgow, brought an action of multiplepoinding and exoneration, the fund in medio being one-half of the said Donald M'Lachlan's estate. Claims to the whole fund in medio were lodged (1) by the said trustees, and (2) by Mrs Catherine Mullen or Harvey, wife of James Harvey, residing at Providence, Rhode Island, U.S.A., and others, who claimed to be the next-of-kin and heirs in moveables of the said Donald M'Lachlan.

Donald M'Lachlan died on 27th April 1902, leaving a testamentary deed dated 4th June 1877 (recorded 1st May 1902), consisting of a printed form of general style with blanks in the form filled in in writing. This deed was, so far as material, as follows, the written portions beinging italics—“I, Donald M'Lachlan, Venetian Blind Manufacturer, residing in Twenty-two Clarendon Street, New City Road, Glasgow ( a), being desirous of settling the succession to my Means and Estate so as to prevent disputes after my decease, Do therefore Give, Grant, Assign, Dispone, Devise, Legate and Bequeath to and in favour of Margaret Scotland or M'Lachlan, my spouse, residing in Twenty—two Clarendon Street, Glasgow ( b), and my ( c) heirs and assignees, heritably and irredeemably All and Sundry” …[testator's whole estate] …: “And I hereby Nominate and Appoint the said Margaret Scotland or M'Lachlan, my spouse, to be my sole executor and universal intromitter with my moveable means and estate: But these presents are granted and shall be accepted by the said Margaret Scotland or M'Lachlan, my spouse, and thefore said lands and other heritages hereby conveyed are disponed with and under the burden of the payment of my whole just and lawful debts, and sickbed and funeral charges, and of the payment of the following legacies, viz., ( d) None

And I reserve my own liferent use and enjoyment of the premises and full power and authority to me, at any time of my life, and even on deathbed, to cancel or alter these presents at pleasure: And I dispense with delivery hereof: And I consent to registration for preservation. In witness whereof I have subscribed these presents,

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written (in so far as not printed) by (e) Edward Buckle Bruce, Accountant, …”

The following marginal notes were on the printed form, referring, as indicated, to the blanks in the forms, viz.—“( a) Insert between the commas the full name, occupation, and residence of disponer. ( b) Insert full name, occupation, and residence of disponee. ( c) ‘His’ or ‘her’ as the case may be. ( d) If no legacies are to be given, write the word ‘None’ and draw the pen down through the blank space in the form of a cross thus X. ( e) Insert full name, occupation, and residence of person who filled up deed.”

On 11th January 1908 the Lord Ordinary ( Dundas) pronounced an interlocutor ranking and preferring Mrs M'Lachlan's trustees to the whole fund in medio in terms of their claim.

Opinion.—“The late Donald M'Lachlan, Venetian blind maker in Glasgow, died on 27th April 1902. He left a testamentary document, dated 4th June 1877, by which he gave, granted, assigned, disponed, devised, legated, and bequeathed to and in favour of Mrs Margaret Scotland or M'Lachlan, his spouse, and his heirs and assignees, all and sundry the whole estate, heritable and moveable, real and personal, which should be belonging and owing to him at his decease, and appointed his said spouse to be his sole executor and universal intromitter with his moveable means and estate. Mrs M'Lachlan survived her husband, obtained confirmation as his executrix, and had transferred to her own name the whole estate left by him. She died on 3rd January 1906, leaving a trust-disposition and settlement and codicil dated respectively 19th February and 21st April 1903, whereby she assigned and disponed to trustees named (of whom the pursuers and real raisers of this action are the survivors acting and accepting) the whole means and estate of every description which should belong to her at the time of her decease, including therein all means and estate over which she should have the power of disposal.

The fund in medio in this multiplepoinding is ‘one-half part or share of the estate and effects which belonged to the said deceased Donald M'Lachlan, so far as the same was recovered by the said Mrs Margaret Scotland or M'Lachlan as executrix of the late Donald M'Lachlan, and is now in’ the possession of Mrs M'Lachlan's trustees. The claimants in the competition are (1) Mrs M'Lachlan's trustees, who claim to retain the whole fund in medio to be held and administered by them in trust for the purposes mentioned in her said trust-disposition and settlement, and (2) various persons who claim to represent Mr M'Lachlan's heir.

In my opinion the first-mentioned claim ought to be sustained and the other claims repelled. The case is not, in my judgment, attended with any serious doubt or difficulty. The question depends upon the proper construction to be put upon Mr M'Lachlan's testamentary document. The document appears upon its face to be a printed form of general style, filled in in writing by an accountant in Glasgow whose aid Mr M'Lachlan seems to have invoked, instead of having recourse to a law agent or filling it up himself. I have not seen the document itself, which is recorded in the Books of Council and Session; but at my request I have been furnished with a reproduction of it which has been prepared or checked by the agents for the parties, and shows its contents as printed and written respectively. The name and designation of the testator's spouse are, of course, filled in in writing. The immediately succeeding words ‘and heirs and assignees’ form part of the printed matter; and the word ‘my’ has been introduced by the writer to fill up a space left blank in the printed style for the pronoun ‘his’ or ‘her,’ as the case might be, which should appropriately relate to the heirs and assignees of the disponee, and not of the testator. It is difficult to avoid the inference that the latter had no thought of conjoining his own heirs, or anyone else, with his wife in the general diposition of his estate; and that the friendly accountant made a mistake in putting in the word ‘my’ instead of ‘her,’ from a conscientious desire to fill up blank spaces, without a sufficiently clear apprehension of the purpose and intention with which this particular space had been left blank in the printed form. If this inference is correct, there would seem to be an end of all dispute in the case, for a disposition of the estate to Mrs M'Lachlan and her heirs and assignees would, beyond all doubt, confer upon that lady a full fee and right of disposal thereof. But however this may be, I find it impossible to hold, as matter of construction and intention, that Mr M'Lachlan's testamentary document imports a joint and equal disposition of his estate to and between his wife on the one hand, and his heirs and assignees on the other. The introduction of the word ‘assignees’ appears to me to be absolutely meaningless in such a connection. Again, if the testator intended his ‘heirs’ only (apart from assignees) to be joint disponees along with his wife it would have been easy for him to say so in plain language. But he did not do this; and the fact that by the subsequent clause (which is part of the printed matter) he throws the whole burden of the payment of debts and legacies upon his wife alone lends strong support to the view that he intended her to be his sole disponee. I heard some argument and citation of authority with regard to the use of the word ‘and’ in relation to its import as a substitution, or as a conditional institution, of heirs and assignees. I do not think that any such point arises in the present case. The question, in my judgment, is whether there is a general disposition to Mrs M'Lachlan alone, or a joint disposition to her and her husband's heirs and assignees; and, for the reasons stated, I think the disposition was to the wife alone. I am therefore of opinion that Mrs M'Lachlan's trustees are entitled to be ranked and preferred to the

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whole fund in medio in terms of their administrative claim, and that the competing claims must be repelled.”

The claimant Mrs Harvey reclaimed, and argued—The document was not open to criticism on the ground of its being partly printed—Titles to Land Consolidation Act, 1868 (32 and 33 Vict. c. 101), sec. 149. Its meaning was clear and obvious, and there being no ex facie ambiguity in the words used, they must be read according to their ordinary meaning. It must be taken that the word “my” had been used advisedly in the will, and if that were so it was not competent to substitute the word “her” for ‘my.’ On the assumption that “my” was to stand, it followed that the word “and” imporied not a substitution but a joint disposition to the wife along with the “heirs and assignees” of the husband. The word “and” could only be read as meaning “whom failing” where it conjoined the name of a disponee and his or her own heirs. Lockhart v. Macdonald, January 24, 1840, 2 D. 377; Thompson's Trustees v. Jamieson, January 26, 1900, 2 F. 470, at p. 496, per Lord Low, 37 S.L.R. 346; M'Laren on Wills and Succession, i. p. 440. It was incompetent to look at the printed notes of direction on the margin of the will. The use of the word “assignees” need not create any difficulty. It was a superfluous word of style, and might be disregarded altogether.

Argued for the respondent—The Lord Ordinary was right. The important consideration was the testator's intention, and all the circumstances pointed to the insertion of the word “my” instead of “her” being a mistake. Joint disposition was not a reasonable reading of the deed in view of the clause burdening the wife with payment of the whole debts, legacies, &c. The word “assignees” was intelligible in conjunction with “her,” but had no reasonable meaning if “my” were to stand. It was quite a relevant consideration here that a printed form had been used. Even if it were held that the word “my” should stand, it was reasonable to read “and” as meaning “whom failing,” thus importing a conditional institution of testator's own heirs,