Scottish Court of Session Decisions

Francis James Barker, doctor of medicine, London, as guardian of his infant child Margaret Frances Shelley Barker; Sydney Thornton Darrell, as guardian of his infant children Lionel Charles Thornton Darrell and Hubert Watson Darrell; and Mrs Elizabeth Mary Watson or Barker now Darrell, for her interest as the mother of the infant children and as an individual, pursuers, brought an action against Thomas Watson M'Nab Watson, C.A., Glasgow, and others as the trustees acting under the holograph trust-disposition and settlement of Mrs Darrell's father, the late John Ebenezer Watson, Glasgow, and against Thomas Watson M'Nab Watson as an individual and curator and tutor to his two children, and against Mrs Margaret Watson or Campbell and Mrs Isabella Lilburn Watson or M'Cowan, daughters of the testator, and their husbands as their curators and administrators-in-law, defenders. The pursuers sought to have it found and declared that the provisions made by the testator in his holograph trust-disposition and settlement with regard to the disposal of the fee of the residue of his estate were not validly revoked, cancelled, or altered in any way by his codicil dated 21st March 1900 and his codicil dated 12th July 1900, or by either of such codicils; or alternatively that at the time of the death of the testator his daughter Mrs Elizabeth Mary Watson or Barker now Darrell was reconciled to her husband Francis James Barker, that they were living together as husband and wife within the meaning of the testator as expressed in the codicils, and that accordingly the codicils in so far as they purported to revoke, cancel, or alter the rights and interests of Mrs Darrell's children as beneficiaries under the holograph trust-disposition and settlement in the fee of the said residue of his estate never became operative.

By his trust-disposition and settlement the testator directed his trustees to divide the whole residue of his estate, which amounted to about £72,000, equally among his children, one son and three daughters, and their issue as follows:—The share falling to his son to be paid to him absolutely, and the shares falling to his daughters to be held by his trustees for their liferent use and their children in fee per stirpes, with a reversion in default of issue for surviving children and the issue of predeceasers. By the two codicils of which reduction was sought the testator provided, inter alia, as follows:—

21st March 1900.

I hereby declare and provide with regard to my daughter Elizabeth Mary (Mrs Barker) that if at the time of my death she should not be reconciled to her husband she is to have the liferent use of her share of the estate as before provided, but at her death the sum of £5000 shall be set aside by my trustees, the yearly interest of which shall be paid to her child or children equally, if more than one, in liferent, and to their children per stirpes in fee.… The difference between the said £5000 and the share liferented in my said daughter shall be added to the capital of my estate and divided among my son and other daughters and their descendants as provided with respect to the other portion of my estate.”

12th July 1900.

I don't consider Frank and Bee (Mrs Barker) reconciled as referred to in codicil to my settlement unless they are living together as husband and wife.”

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The defenders pleaded—“2. The pursuers' averments being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed. 3. Upon a sound construction of the testamentary writings of the testator, the provisions made by him with regard to the disposal of the residue of his estate in favour of the children of Mrs Darrell were validly revoked, cancelled, or altered by his codicil dated 21st March 1900 (being the second codicil of that date), and his codicil dated 12th July 1900, or by either of said codicils, and the defenders ought to be assoilzied from the first declaratory conclusions of the summons. 4. The averments of the pursuers, so far as material, being unfounded in fact, the defenders are entitled to absolvitor. 5. The contingency upon which the testator provided that his said codicil of 21st March 1900 should operate having occurred, the defenders ought to be assoilzied from the alternative conclusions of the summons.”

On 28th February 1917 the Lord Ordinary ( Dewar) assoilzied the defenders from the conclusions of the summons.

Opinion.—… “The testator's intention, read in the light of the admitted facts, is, I think, quite clear. By the first codicil he provides that if at the date of his death his daughter should not be ‘reconciled’ to her husband the provision which he had made in favour of her children should suffer abatement. He apparently anticipated that there might be doubt as to what he meant by the word ‘reconciled,’ and he therefore explains in the second codicil precisely what it means. These spouses were then living apart. He obviously disapproved of that, and provided that they are not toberegarded as reconciled ‘unless they are living together as husband and wife.’ The plain meaning of that appears to me to be, that if at the time of his death his daughter was still living apart from her husband, as she had been during his life, then the codicil should take effect. The test is not whether they were on affectionate terms, but whether they had resumed family life and were occupying the same residence. As they admittedly were not, I am of opinion that the contingency has occurred, and that the defenders are entitled to be assoilzied from the conclusions of the summons, with expenses.”

The pursuers reclaimed, and on 30th May 1917 the Second Division recalled the Lord Ordinary's interlocutor, allowed parties a proof of their averments on record, and remitted to the Lord Ordinary to take the proof.

The facts of the case and the import of the evidence appear from the opinion of Lord Sands (Ordinary), who on 5th March 1918 pronounced the following interlocutor—“Finds that at the date of the death, upon 18th April 1901, of John Ebenezer Watson, the testator, the state of the health of his daughter, the pursuer Mrs Elizabeth Mary Watson or Barker now Darrell, precluded her and her husband living together as husband and wife in terms of the condition contained in the testator's codicil of 12th July 1900 to his holograph trust-disposition and settlement, and that the condition was therefore an impossible one and cannot be given effect to: Finds that at the date of the testator's death Mrs Barker was reconciled to her husband in the sense in which in relation to the surrounding circumstances the word ‘reconciled’ in the testator's codicil of 21st March 1900 falls to be construed. Therefore finds and declares that the said codicils, in so far as they purported to revoke, cancel, or alter the rights and interests of the children of the pursuer, the said Mrs Elizabeth Mary Watson or Barker now Darrell, as beneficiaries under his said holograph trust-disposition and settlement in the fee of the residue of his estate, never became operative, and did not in fact revoke, cancel, or alter their rights and interests to any extent or effect, and that the defenders, the trustees of the testator, are bound to hold and administer the trust estate of the testator upon the footing that the said codicils are of no force or effect in so far as they purported to revoke, cancel, or alter the rights and interests of the children of the said Mrs Elizabeth Mary Watson or Barker now Darrell…”

Opinion.—… “At the date of the first codicil his daughter (Mrs Barker) had one child. Certain differences had arisen between Dr and Mrs Barker, and the object of the codicil was to secure that whilst the claims of blood should not be wholly ignored, Dr Barker's daughter, in case these differences were not composed, should not be an heiress. In the light of the evidence I am quite unable to accept the suggestion, which the opening words might seem to encourage, that the provision was directed against the daughter as the party to blame for the conjugal differences. The provision was an ill-considered one. Mrs Barker was a young woman. The events which have actually happened are not such as a father might have contemplated, but there were other not improbable contingencies. Dr Barker might have died young, in which case vicarious punishment through his daughter (Mr Watson's own grandchild) was hardly reasonable, and even if feeling against Dr Barker ran so high, in the case of a second marriage of Mrs Barker and consequent issue, the operation of the clause would have been absurd.

A clause of disinherison of this kind must be narrowly construed. Doubtless effect is not to be denied to it because the circumstances are such as the testator presumably omitted to contemplate, but on the other hand there is no room for any liberal interpretation which would seek to give effect to presumed intentions of the truster in framing the clause, albeit these might have been somewhat inadequately expressed.

The married life of Dr and Mrs Barker seems to have begun happily enough. But it was not long before he discovered that his wife had contracted the laudanum habit. This caused much trouble and distress, and after the birth of the child led to some painful and pitiful domestic scenes. Eventually it was arranged that Mrs Barker should go to Glasgow on a visit to her father, who knew nothing of the matter,

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and consult Dr Samson Gemmell, an old friend of the husband. The spouses parted on the most affectionate terms, and Dr Barker sent most loving and encouraging letters to his wife. But shortly after she left home Dr Barker was informed by a lady—a friend and neighbour, and presumably a patient—that Mrs Barker had made certain statements to her of a painful and indelicate character concerning their matrimonial relations. The discovery of the circulation of these stories, which Dr Barker thought, and as the sequel proved rightly thought, would be injurious to his practice, had an extraordinary effect on his mind. He appears to have made no allowance for the morbid condition of his wife, the remembrance of all the past injuries was renewed, and he wrote to her and continued, notwithstanding all her touching pleadings with him, to write to her in a tone of the utmost harshness. Temporary irritation, and even indignation, would not have been surprising, but the persistent bitterness and hardness which replaced the warm affection in his tone and attitude almost tempts one who studies the correspondence to discard modern scientific preconceptions and to fall back upon the old belief that the Devil may take possession of a man. I am unable to accept the suggestion that Dr Barker's attitude was a mere posture of firmness to secure that the wife should enter a Home. There was real bitterness in it, the source of which seems to have been his professional pride and ambition and his absorption in his practice which he felt would be injured.

The evidence shows, and this consideration constitutes in my view one of the chief difficulties in the case, that Dr Barker never wholly got over this impression. There were different phases, ups and downs, in his future relations with his wife, but the bitter impression always lingered.

The matter came to the knowledge of Mr Watson during his daughter's visit, and he was deeply distressed about it. He was reluctant to believe that there was anything seriously wrong with his daughter, still more reluctant to believe that it was necessary for her to enter a home. His consuming desire was not so much to restore complete harmony, though no doubt he would gladly have done so, as to get the parties to resume cohabitation and avoid the scandal of any open separation. Dr Barker was unbending in the position that he would not resume cohabitation under existing conditions, but that his wife must enter a home for treatment. It was in these circumstances that the first codicil was written. Correspondence and negotiations followed, and eventually Mrs Barker, after much shilly-shallying, agreed to enter a home. In the end of June, at a meeting between the spouses and Mr Thomas Watson, a brother of Mr Watson's, in London, it was arranged that she should enter a home in Leicester. I hold it to be proved that she entered the home on the footing, agreed to eagerly by her, somewhat coldly and sceptically by the husband, that they should resume cohabitation on the expiry of her confinement if the treatment proved successful.

Mr John Watson was not in London when the arrangement was made, and he did not meet either Dr Barker or his daughter at the time. He learned that she had agreed to meet her husband's wishes by entering a home. This pleased him, as avoiding a separation and as affording the prospect of a renewal of cohabitation on which he was set, but it is not clear that he himself regarded the step as really necessary in his daughter's own interest, or as being other than an enforced and humiliating compliance with the demand of an unreasonable husband. It was in this state of matters that Mr Watson wrote the second codicil. As already indicated, he was extremely anxious that his daughter should resume cohabitation with her husband. He may very well have thought that this must be the first step towards the restoration of mutual confidence and affection. But I think that this consideration does not wholly explain his attitude. For reasons which are quite intelligible, though everybody may not sympathise with them, he attached more importance to the avoidance of a separation than to any question of the feelings Dr Barker might entertain towards his wife, or any opinion he had formed as to the character and conduct of Dr Barker or the likelihood of domestic felicity in the union. Brooding over the matter he seems to have said to himself—‘My daughter has done this to meet her husband's wishes, but I do not know that I have got to the bottom of the difference between her and this obstinate and queer tempered man, or that he really means to take her back to live with him. If he doesn't mean to do so I do not mean his child to have her share of my money. “Reconcile” may be an ambulatory word. I shall provide a definite test—cohabitation, the thing to which I really attach importance.’ The second codicil, like the first, seems to have been written hurriedly, and without looking round and considering all contingencies. At the time when this codicil was written, and down to the date of the testator's death, cohabitation was impossible. It is not clear, as has already been indicated, that the testator realised this, and did not, on the contrary, regard confinement in the home as an indignity which might be terminated at any time by Dr Barker's will. But on the assumption that he did realise it, I think that the codicil is explicable in two ways—either (1) that the testator did not expect his daughter to be very long confined, and overlooked the contingency of his dying before cohabitation became possible, or what is perhaps more likely, (2) that he overlooked that the date of his death was the punctum temporis under the first codicil, or did not realise that as regards the date the codicil would be strictly interpreted. Had he taken advice, and had the position been fully explained to him, I think it probable that he would have explained that what he desired to provide was that the clause should be operative if cohabitation had not been resumed before

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his death, or was not resumed after the period of confinement in the home, should he die before its expiry. According to Mr Thomas Watson, the son, this last was the view he himself took of the effect of the provision when he first heard of it. I am not sure that it would be illegitimate to give effect to such a view in circumstances where the result would be to make operative a liberal provision which would otherwise fail. But I do not think it legitimate to give this liberal construction to a clause of adverse discrimination or disinherison, which, taken literally, was inapplicable in the circumstances that existed at the date of death.

I hold it to be proved that the course insisted in by Dr Barker, of his wife entering a home, was a proper one; that such confinement was essential to her recovery, and that the successful treatment proved her salvation. Accordingly I hold that at the date of the testator's death Dr and Mrs Barker could not have been ‘living together as husband and wife’ without gross disregard of what Mrs Barker's health required.

I am accordingly of opinion that if the second codicil be taken by itself as importing a condition that the spouses should be cohabiting at the date of the testator's death, this condition in the circumstances which occurred was an impossible one and falls to be disregarded. I recognise that there might be circumstances where such a clause might be operative even though at the exact date cohabitation were impossible. If, for example, spouses had been living separate, and down to the date of death of the testator there had been no resumption of cohabitation, I do not think the fact that this date found one of the spouses in an hospital or on military service would render such a condition void. But the circumstances of the present case render it impossible to regard the confinement in the home at the date of the testator's death as a mere temporary incident in an established state of non-cohabitation. This view was pressed on the representation that Mrs Barker was really separate before she entered the home and did not leave her husband's house to enter it. But I cannot regard the position during the months when Mrs Barker was at her father's house in Glasgow as a period of separation to this effect. It was a period of suspense and negotiation, and throughout from the first unpleasantness the going to the home was the primary matter of discussion.

But if the second codicil fails there remains the important question whether the second codicil supersedes the first by prescribing a sole condition. I think it supersedes it to this effect, that if the parties had been living together, no matter how unhappily, the first codicil could not have been founded upon as importing a further condition. But although the touchstone provided by the second codicil failed I am of opinion that the first codicil cannot be disregarded. If Mrs Barker had declined to comply with her husband's wish and enter a home, and without arriving at any understanding with her husband had taken other advice and started on a long sea voyage for her health, I think the first codicil might have been operative, although the second might not have been applicable. I proceed therefore to consider whether the first codicil can be held to have been satisfied as at the date of the testator's death. In considering this question, however, I do not think that the second codicil even if inoperative can be wholly disregarded as interpretative of the testator's mind.

Further, I think the consideration is of importance that apart altogether from the terms of the second codicil resumption of cohabitation is the most satisfactory symbol of reconciliation, and that up to the date of the testator's death it was impossible.

The facts at the date of the testator's death were these—The cause of difference between the spouses had been the wife's drug habit and certain very unfortunate episodes attributable thereto. The husband had insisted, and rightly insisted, as a condition of the establishment of normal domestic relations that the wife should go into a home. To this the wife had agreed after much reluctance, and she was now quite satisfied that it had been a wise thing to do. At the date of this agreement both parties contemplated and understood that normal domestic relations should be resumed as soon as the wife's health rendered it practicable. There remained, however, in the mind of the husband a certain sense of bitterness owing to the injury which his wife's drug habit had done him, and this deprived the wife of his full affection.

As regards the father, he was extremely glad that an understanding had been arrived at. He disliked his daughter being in a home, but he was content that she should be there if it was to satisfy her husband and lead to a resumption of domestic life. But he was not a party to the later negotiations. He did not know all the circumstances. He had not seen either Dr Barker or his daughter since the arrangement took place. He recognised that there had been some sort of understanding arrived at, but he was not sure how far it went. He regarded Dr Barker as a man of curious and uncertain temper, and he was apprehensive that things might still go wrong and no resumption of cohabitation take place. It was in this state of mind that he wrote his second codicil.

These, I think, were the circumstances. On these facts I think that if Mrs Barker had raised the present action immediately after her father's death she would have succeeded, provided, of course, that I am right in my view of the effect, or rather non-effect in the circumstances, of the second codicil.

Her narrative would have been that a serious difference had arisen between her and her husband owing to her having contracted the opium habit, the untoward consequences thereof, and her refusal to go into a home. That apart from this there had been no cause of difference between them, that she had at last agreed to comply with her husband's wishes and go into a home, and that they had mutually agreed to resume domestic life as soon as her health

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was restored. Upon these facts I have no doubt that it would have been held that the condition was satisfied. The issue to be tried in the present action is the same as in the action I have figured. The rights of Mrs Barker's children and the consequential rights of other children and grandchildren were determined under the codicil as at the date of the testator's death. But against all this it may be urged—That may very well be so, but no such action as is figured was raised, and although what happened afterwards cannot alter the facts as they stood at the father's death, the action being raised now, it is legitimate to show by what subsequently happened, that the inference which might have been drawn would have been quite erroneous, and that in fact there was no reconciliation. That appears to me to be a legitimate contention. But great care must be exercised in applying it. The subsequent conduct of parties may have been influenced by conditions which emerged subsequent to the father's death. In so far as this was the case the conduct must be disregarded. I think that such conditions were operative. There was first of all simply the lapse of further time during which the parties were not together. It is notorious, I think, that where spouses are for a long time living apart after a difference distance does not make the heart grow tender. The one may become less and less necessary to the other. Then Dr Barker had come to realise that the grievous injury done to his practice and standing was not a mere temporary set back. He brooded much over this, and he had a hard struggle, which not unnaturally kept his wife before his mind in an unpleasant aspect. The child had been stricken by a terrible infirmity necessitating frequent operations and rendering any disturbance of domestic arrangements a matter of acute anxiety, and in his view, with which I sympathise, rendering it most inexpedient that his wife should resume control so long as any doubt existed as to her complete restoration. Both spouses had come fully to realise when the problem was faced in October 1901 that Mrs. Barker could not return to Warrington Crescent, and Dr Barker found that his practice had so suffered that he could not dispose, of it at the time without losing the money he had paid for it. For these reasons I do not think that the fact that the parties did not resume cohabitation immediately after Mrs Barker's return to London is negative of the conditions she maintains existed as at the date of her father's death. An acute difference had arisen owing to her drug habit and her refusal to go into a home. That difference had been settled by her going into a home. She entered the home on the footing that the parties were to resume cohabitation as soon as circumstances rendered it possible. Even Dr Riley, the most adverse witness to the pursuers in the case, puts that clearly. What happened afterwards, either by way of dispute or of living together, becomes of less and less importance, for reasons I have already indicated, as each month passed away. The evidence of occasional connubial coming together, however, shows that at all events down to 1905 there was no such repugnance as was inconsistent with the renewal of domestic life. It cannot therefore be suggested that at the date of the father's death there were any such conditions as rendered the carrying out of what was contemplated when Mrs Barker entered the home impossible or even improbable.

The most adverse circumstance to the pursuers is perhaps the correspondence which followed upon the termination of Mrs Barker's life in the home. In my view, however, that correspondence does not quite accurately represent the relations of parties at the time. The recourse to the law agent at Glasgow was an isolated and petulant incident, and I am satisfied that there was no denial of access to the child, though the child's wretched health and the difficulty about Mrs Barker coming to the house where her sister-in-law was mistress and in charge of the child made it not an altogether easy matter. It is due to the sister-in-law to say that she impressed me most favourably, and her position was a most delicate one as she did not even know Mrs Barker. And the Watson family do not appear to have regarded the Barkers with any favour.

By this time I think Mrs Barker herself realised that she could not return to Warrington Crescent. I do not think that she had the old strong desire to do so. But her position was no doubt a trying one, and it is not remarkable if she was discontented and unsettled. Whilst neither she nor her husband were now earnestly yearning to resume domestic life, I believe that they still both contemplated and intended it as soon as circumstances permitted. But the husband was not prepared to subordinate every other consideration to this, or hurriedly to throw away the small bird he had in his hand, in the shape of his practice, to seek one with his wife in the bush.

That I think was the attitude of the spouses after the wife left the home, and it does not appear to me to displace the inferences which without this light would have been drawn as to the relations of parties at the date of the father's death. The conditions as regards the difficulties about the practice, the child's health, and the lapse of time which contributed to create that attitude had not then developed or were not fully realised.

Stress, I should notice, is laid upon Dr Barker's attitude towards his wife before this when she was in the home. Some allowance must be made for Dr Barker's extreme poverty and professional anxiety at this time. But certainly he was not solicitous in his attention to his wife. The evidence of his conduct at this time, however, cuts both ways. He visited his wife several times. It is undeniable that his old strong affection had cooled, and it was not this feeling that constrained him. Had the spouses been separate it is improbable, I think, that he would have visited her at all. He visited her, as I think, because she was his wife from whom he was not separated, and

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with whom, if matters went well as regards her health, he was to resume cohabitation. The attitude of Mrs Barker's own family when she left the home is not, I think, without some significance as throwing light upon the understanding of the footing on which she was there. Although they were on affectionate terms with her, and with one exception greatly disliked her husband, there was no suggestion of arranging for her or receiving her. They expected her to resume cohabitation at once and were much surprised and annoyed when this did not take place.

Construed in the light of all the surrounding circumstances, I am of opinion that the testator's two codicils were directed against separation. At the time when the first codicil was written Dr Barker refused cohabitation, insisting upon definite separation unless his wife agreed to certain conditions with which she was unwilling to comply. At the dates of the second codicil and of his death the testator was not sure whether the spouses were separate or not. In fact, however, the spouses were not separate, and there was no question of separation between them, or contemplated by either if the wife recovered. Accordingly, in my view, the disinherison in the codicils fails.

There is an alternative view of the case which leads to the same result, viz., that the first codicil fails for the same reason as the second, viz., that the condition was in the circumstances impossible of fulfilment having regard to the date at which the testator died. If reconciliation, as the testator thought—and Dr Riley uses the word, as he explains, in the same sense—means or necessarily implies the resumption of domestic life, this was impossible from the date of the first codicil down to the date of the testator's death. Having regard to Dr Barker's position as a medical man, and the fact that there was a young infant in the house, I think it was impossible—though the testator did not realise this—for him to have received his wife back into his house at any time subsequent to his discovery of the aberrations disclosed by Mrs Niven a few days after his wife left home. In this view, consideration of anything that happened after the testator's death would be irrelevant. I prefer, however, to rest my judgment upon the ground that the bar to renewal of domestic life, so far as dependent upon the will of the parties, was removed when Mrs Barker agreed to comply with her husband's wishes and enter the home.”

The defenders reclaimed, and argued—The will and codicils read together in their natural sense imposed a condition which was perfectly clear, and even though it might be prejudicial should receive effect, viz., that unless the spouses at the time of the testator's death had a personal physical residence together, the children of the wife should only take the restricted provision of the codicil. This was a condition-precedent, and was in no sense an impossible condition — Priestley v. Holgate, 1857, 3 Kay & J. 286; Egerton v. Earl Brownlow and Others, 1853, 4 Cl. (H.L.) 1, per Lord Cranworth at p. 22, and per Baron Parke at p. 120; Bedborough v. Bedborough, 1865, 34 Beav. 286; Shewell v. Dwarris, 1858, John. 172; Von Scheffler v. Shuldham, [1912] 1 I.R. 288; Caldwell v. Cresswell, 1870, 6 Ch. 278; Thomas v. Howell, 1 Salk. 170, quoted in Jarman on Wills (6th ed.), ii, 1483; Halsbury, The Laws of England, v., 28, p. 590; Reids v. M'Phedran, 1881, 9 R. 80, 19 S.L.R. 51; Forbes v. Forbes' Trustees, 1882, 9 R. 675, 19 S.L.R. 453. There was no difference between the laws of England and Scotland in this matter, and, as the cases cited showed, conditions attached to bequests were strictly interpreted, and the words imposing them must be construed in their natural meaning. The cases cited contra were not in point, and showed that the construction given to impossible conditions was confined to acts in the nature of the thing impossible.

Argued for the respondents—The condition imposed by the codicils was open to construction, and on a true construction it had been satisfied by the wife going into a home with a view to the ultimate resumption of conjugal relations, and thus terminating the sole cause of quarrel between them. To read the words literally was to make the condition an impossible one, and the Court would not construe general words in a will so as to impute to the testator an unreasonable intention— M'Gibbon v. Abbott, 1885, L.R., 10 A.C. 653, per Sir Barnes Peacock at p. 658. Possibility must be construed with reference to the subject of the condition, i.e., the domestic circumstances of the case, and held satisfied if everything had been done that reasonably could be done to fulfil them, or—if read literally as meaning actual cohabitation—should be treated pro non scripto—M'Laren, Wills and Succession, section 1094; Erskine, iii,3, 85; Fraserv. Rose, 1849, 11 D. 1466, per Lord Cuninghame at p. 1468; Pirie v. Pirie, 1873, 11 Macph. 941, per Lord Justice-Clerk Moncreiff at pp. 947–8, and per Lord Neaves at p. 953, 10 S.L.R. 127; Bell's Prin., sections 49 and 1785; Woods v. Townley, 1853, 11 Hare 314; Murphy & Linehan v. Broder, 1875, 9 I.R. C.L. 123; in re Adair, [1909] 1 I.R. 311; Dig xxxv, i, 81. Where, as in the present case, the circumstances canvassed had been created by the testator himself, who had provided the money by which the wife had gone into the home, they would be disregarded— Gath v. Burton, 1839, 1 Beav. 478, per Langdale, M.R., at p. 480; Darley v. Langworthy, 1774, 3 Bro. P.C. 359; Walker v. Walker, 1860, 2 De G. F. & J. 255; Wedgwood v. Denton, 1871, L.R., 12 Eq. 290; Jarman on Wills (6th ed.) p. 1481; Halsbury, The Laws of England, v. 28, p. 591. If the condition was to be read as involving actual cohabitation at the date of the testator's death, it could also, in the peculiar circumstances of the parties at the time, be disregarded as contra bonos mores— Wilkinson v. Wilkinson, 1871, L.R., 12 Eq. 604. The case of Priestley v. Holgate ( cit. sup,), founded on by the reclaimer, was not in point, because there the testator's words were not open to construction as here. The condition was personal to the legatees, and not as here to the parents of the legatees, and the clause was not a penalty or forfeiture

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clause as in the present case. If this was correctly regarded as a forfeiture clause, it could not be enforced in the. absence of evidence that the spouses knew of the condition, and there was no such evidence— Rodgers' Trustees v. Allfrey, 1910 S.C. 1015, 47 S.L.R. 869.

At advising—