United Kingdom House of Lords Decisions

Lord Colonsay said that the first ground of defence, which was that Miss Xaveria was bound by the fetters of the entail, could not be sustained. She was the institute under the entail, and it was clearly settled that when the fetters of the entail were directed against the heirs of entail, these did not, without express words, extend to the institute. It was contended that there were expressions in other parts of the deed which implied that the institute was intended to be bound by the fetters, but these expressions were too loose to alter the effect of the main clause. Miss Xaveria therefore had the power, if she had so chosen, to convey by her general disposition the estate of Cogarth. The second point was whether she had so conveyed it, and this required careful consideration, as it depended on the construction to be given to her general disposition, taken in connection with the deed of entail, which contained a special destination of this estate. The general rule undoubtedly had been in Scotland that a subsequent general disposition did not evacuate a previous special destination, unless the words were very clear to show it was so intended to operate. The authorities on this point seemed to show that the rule that a subsequent general disposition revoking a prior special destination was always subject to be qualified by the external circumstances of the case, as well as the words of the deeds themselves, and the Court must take into account those circumstances as throwing light on the intention of the disposer. Here there were various extrinsic circumstances besides the words of the general disposition. The general disposition did not mention Cogarth at all, which itself was a strong indication that it was not included in such disposition, and after executing her general disposition she still dealt with Cogarth as if it was bound by the entail. Whether or not she really believed that she had power to dispose of the estate of Cogarth absolutely is of no great importance, for in either case, if she did not intend to dispose of it, that was conclusive. It was contended that not only did the two deeds show an intention not to give away Cogarth, and that her dealings with that estate confirmed that view, but that her letters still further confirmed that view. It might be that those letters could legitimately be looked to with a view to arrive at the intention, but it was unnecessary to resort to them; for in this case he was of opinion that the other circumstances, and the deeds themselves, were sufficient to rebut the presumption that she intended to include the estate of Cogarth in her general settlement. The decision of the Court below ought therefore to be affirmed.

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