Scottish Court of Session Decisions

Lord Dundas.—The testator, Alexander Cobban, a retired butler, died on 16th May 1911 a domiciled Scotsman. He left a last will and testament, dated in 1907, with two relative codicils, dated respectively 21st April and 6th May 1911. I understand that the will is a document partly written and partly printed, and it was executed before witnesses. The residuary clause is in the following terms:—“I bequeath the remainder of my estate and effects (when realised) to be divided equally between my brother Peter and his children, and my brother George Cobban and his children, my nephews John Cobban and Alexander Cobban, sons of my brother Peter Cobban, not to participate in this last bequest.” The testator was survived by his two brothers, and by all their children. Peter Cobban has two children, besides his sons John and Alexander, who are excluded from participation in the residue; George Cobban has six children.

The first question put to us is whether the residue is divisible between the testator's two brothers, or among the whole members of the two brothers' families, including the two brothers themselves, with the exception of the two excluded nephews. In my opinion, the latter of these alternative views is correct, and the former erroneous. I am unable to read the direction to divide between “Peter and his children” and “George and his children” respectively as importing a bequest to each of the brothers in case they should survive the testator, and a destination-over to their respective children, operative only in the event of the parent's decease. The word “and” is not, in my view, an apt one to indicate a destination-over or a conditional institution in the event of the failure of the first person named; though it has been construed in that sense where the context leads necessarily or by reasonable implication to that result, e.g., a bequest to “A and his heirs.” In the ordinary case, I think the word “and” points to a joint right and not to successive rights in the parties named. In the present case this conclusion seems to me to be strengthened by the express exclusion of two of the testator's nephews from participation “in this last bequest,” which appears to favour the view of a present rather than a conditional bequest. I am therefore for answering the first alternative branch of the first question in the negative and the second in the affirmative.

I have felt more doubt about the answer to be given to the second question, which asks whether the residue should be divided into two equal parts per stirpes, one to be shared by Peter and his children (other than the two children expressly excluded) equally among them, and the other by George and his children equally among them; or whether it is to be divided among, and shared by, Peter and his children (other than the two expressly excluded) and George and his children equally per capita. The conclusion I have reached is that the latter of these alternative views is the true one. The argument in favour of a bipartite division of the residue per stirpes certainly derives force from the use of the word “between.” I may, however, quote the language of Lord President Inglis in Bogie's Trustees, where he pointed out that “‘between’ is undoubtedly a dual preposition etymologically, and in classical English signifies a separation or division into two. But it is equally clear that there is an improper use of the word ‘between’ which makes it equivalent to ‘among.’” I observe that Dr Johnson in his Dictionary (s.v. “between”) says, “‘between’ is properly used of two, and ‘among’ of more; but perhaps this accuracy is not always preserved.” In Bogie's Trustees, and in other cases (e.g., Laing's Trustees), the Court has read “between” as meaning “among” where the context seemed reasonably to demand that reading. Conversely, the word “among” occurring in a formal trust-settlement, was construed in a recent case as meaning “between.” In the case before us I do not find it difficult to suppose that a man in the testator's position in life should have used the word “between” in its colloquial rather than in its classical signification. When the context of the residuary clause is regarded, it seems to me that this use of the word must have been intended by Mr Cobban. I think the fair and right construction of the clause is that it directs an equal division of the residue among Peter and his children (excepting the two excluded) and George and his children per capita. The bequest is to the truster's brothers and their respective children as joint beneficiaries forming one class. The repeated use of the word “and” seems to me to lead almost necessarily to this result. I do not see why, as matter of construction, that word, where it occurs for the second time, should be held as indicating a separation of Peter and his children from George and his children, so as to infer the intention of a bipartite division; or why we should disregard the fact that each of the brothers is also separated from his own children by the interposition of the same word “and.” I am therefore for answering the first alternative branch of the second question in the negative, and the second in the affirmative.

The third question put to us relates to a bequest contained in the will in favour of the testator's nephew, Alexander Cobban, who was appointed one of the executors, but declined to act, and who was one of the two nephews expressly excluded by the will from participation in the residue.

The bequest runs thus: “to my nephew, Alexander Cobban (the above-named executor), the one hundred pounds due to me from the above-named Henry Edwin Veal (whose security the said Alexander Cobban holds), also the two endowment policies of one hundred pounds each with profits due on the said policies. It is my wish that my nephew (Alexander Cobban) shall not press his claim against the said Henry Edwin Veal during the next four years, after which he may approach him as regards settlement of aforesaid one hundred pounds with interest, etc.” In order to understand the words quoted, one must turn to the statement of admitted facts. It appears that the debt of £100 referred to was repaid to the deceased on 29th March 1911, i.e., seven weeks before his death; that the two endowment policies (both of which were on Mr Veal's life) were never assigned to the testator absolutely, but merely in security of the debt, and consequently formed no part of his estate. One of the policies became a claim in 1910, and by arrangement with the testator the proceeds were paid to Mr Veal, the debt due by him still subsisting, and being thereafter secured only by the remaining policy which matured in or about March 1911, when the testator received payment of its proceeds, £126, 10s. This sum was duly credited to his bank account, and he handed Mr Veal a cheque for £24, 10s., retaining the balance in repayment of the debt and accrued interest. The original debt was thus repaid to and discharged by the testator during his lifetime; and the policies, which had never belonged to him, were not at his death in existence as claims. The question put to us is, “does the bequest of £100 and endowment policies to the fifth party” (Alexander Cobban) “subsist as a legacy of £100 to be implemented out of the deceased's estate?” My opinion is in the negative. Mr Burn Murdoch put forward, I believe, all that could be said in favour of Alexander Cobban's claim to receive a legacy of £100. He argued that the bequest was not truly one of a claim to the debt due to the testator at the date of his will, but of a sum of £100,—the debt and relative security being merely indicated as the source from which that sum might primarily and appropriately be paid; and that the legacy was therefore a general one, to be made good out of the testator's general estate, although the debt had been repaid during his lifetime. I cannot agree with this contention. I think the legacy was special,—“the one hundred pounds” due to the testator by Mr Veal; and that, the debt being repaid, the legacy must be held to have been adeemed. That the legacy was special seems to me to be indicated by the testator's allusion to “his” (Alexander Cobban's) “claim,” as well as by the whole tenor of the bequest. If the debt had subsisted at the testator's death, and the general residue had proved insufficient to pay all the legacies in full, I think Alexander would have had a good claim to payment in full of his £100, as being a special legacy. But if the legacy would have been held, in that event, to be special, it must surely be reckoned as special for all purposes. The cases of Pagan and M'Lean seem to be adverse to Alexander Cobban's contention. It is settled (for better or worse) that ademption is a question of fact, and not of intention, and Mr Burn Murdoch admitted this. But he endeavoured to fortify his argument, already indicated, upon the testator's intention, and as matter of construction of the clause in the will, by two supplementary contentions. I confess I did not see any force in that which was based upon the view that we have here a case of res aliena saienter legatc; for it seems to me that, assuming the policies to be res aliena, there was no legacy of them in any true sense; the security for the claim of debt was, I think, referred to by the testator merely as ancillary to the bequest of that claim. The other argument was founded on the terms of the codicil of 21st April 1911, in which the testator, inter alia, directed his executors “to give effect generally to the bequests of the said will”; and, after making certain unimportant additions to and alterations upon it, added “and I confirm the whole bequests of my said will so far as not modified by these presents.” The date of this codicil is less than a month later than that of the repayment and discharge of the debt. Mr Burn Murdoch urged that it was impossible to conceive that the testator would have so expressed his codicil, if he had not intended that the bequest of £100 to Alexander Cobban should be and continue good and valid. I am afraid the answer is that the words in the codicil, which are quite usual and ordinary ones in a codicil prepared (as this one was) by a law-agent, cannot be read as giving force or effect to a legacy contained in the will, if that legacy was already ineffectual and inoperative, as I think this one clearly was. I confess that I feel a good deal of sympathy with the fifth party, because it is, to my mind, not at all improbable that the testator did intend him to have £100, and upon that very account excluded him from any share in the residue. But as matter of law I am constrained to hold that the special legacy contained in the will was adeemed; and that the third question must be answered in the negative.

Lord Mackenzie concurred.

Lord Cullen.—I concur. As regards the first question raised in the case, the words used by the testator to describe his residuary legatees seem to me plainly to import, according to their natural meaning, that the children of his brothers Peter and George are conjoined on an equal footing with their parents in the sharing of the gift. And there is nothing in the context of the will to impress them with any different meaning.

As regards the second question, the common use of the word “between,” as meaning “among,” makes it legitimate to resort to the context in any particular case for guidance as to the sense in which it has been used by the testator. In this case the grammatical structure of the description of the totality of beneficiaries does not lend itself to the notion of a bipartite division. It seems to me to be a mere assumption to say that the testator intended the description to be broken into two parts at the second “and,” as if he had said, “Peter and his children, on the one hand,” and “George and his children, on the other hand.” Moreover, the idea of a stirpital division involved in the argument for the third parties is not favoured by the fact that the head of each stirps is to rank in the division only pari passu with his children. I am of opinion that the division was intended to be per capita.

The last question relates to the bequest in favour of the fifth party. I am unable to read the terms in which it is expressed in the will as meaning anything else than this, that the then existing claim of debt against Mr Veal was the thing specifically bequeathed to the fifth party along with the benefit of the securities held for it. On this footing there is no escape from the conclusion that the bequest was adeemed by the payment of the debt during the testator's life. The clause of confirmation could not alter the fact. Nor is it legitimate, in my opinion, to read it as making a new and substantial gift to the fifth party in the shape of a general pecuniary legacy of £100.