United Kingdom House of Lords Decisions

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Cite as: 10 ScotLR 451, [1873] UKHL 451

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SCOTTISH_SLR_House_of_Lords

Page: 451↓

House of Lords.

Monday, May 19. 1873.

(Before Lord Chancellor Selborne, Lords Chelmsford and Colonsay.)

10 SLR 451

Glendonwyn

v.

Gordon.

( Ante, vol. vii. p. 695.)

Subject_Entail — Institute — Fetters — Conveyance — Intention.
Facts:

By deed of entail A, in the event (which occurred) of his decease without heirs of his body, conveyed certain lands to his wife in liferent and to B in fee. The first condition of the entail was that B and the “whole heirs of entail and substitutes above written” should assume a certain name. The fetters of the entail were directed only against “the heirs of entail or substitutes above written.” B, after possessing the estate, died, leaving a deed whereby she conveyed to C certain lands nominatim, and also generally her whole heritable and moveable estate. In several previous deeds, which B granted in security of borrowed money, she styled herself heiress of entail in possession of the said lands, and as such bound by the fetters of the entail. Held—(1) that B had not intended by the deed in question to convey the said entailed lands to C, for the reason that she was not aware that she possessed them as absolute fiar. (2) that the fetters of the entail did not apply to B, the conditional institute, and that she possessed the said lands as absolute fiar.

Headnote:

This was an appeal from a decision of the First Division. The action was raised by the appellant, to have it declared that the late Miss Xaveria Glendonwyn held the lands of Cogarth, &c., in Kirkcudbright and Dumfries, in fee simple, and free from the fetters of the entail under which her title to the said lands had been made up; and, second, that the said lands were conveyed to the appellant's father by Miss Glendonwyn's general disposition and settlement, and were now vested in the appellant as his father's heir. The late Miss Glendonwyn died seven years before the action was raised, and the respondent had meantime been in possession under the entail. The entail was executed by Miss Glendonwyn's uncle, Mr Maxwell of Milnhead, in 1821, and she was the institute under the entail. The appellant claimed under her general disposition and settlement, which was in general terms, and the main question was whether this general disposition evacuated the prior special destination in the deed of entail. The Court below held that it did not.

At advising—

Judgment:

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.

Page: 452↓

The Lord Chancellor said that if the rule of the law of Scotland was to be taken to be the same as the law of England, then it was well settled that in construing a will or testamentary writing it was not competent to refer to extrinsic circumstances, except merely for purposes of identifying persons or property dealt with; and he should be reluctant to think the rule of the law of Scotland could be different in a matter of this kind. Still there had been several cases, some as old as Lord Hardwicke's time, which showed it had been the practice in Scotland to take into account these extrinsic circumstances, and upon the whole he was disposed to agree with the conclusion indicated by his noble and learned friend.

Lord Chelmsford also concurred.

Affirmed with costs.

Counsel:

Counsel for the Appellant—Solicitor-General, Jessel, and Pearson, Q.C. Agents— Messrs Mackenzie & Kermack, W.S.; Messrs Loch & Maclaurin, Westminster.

Counsel for the Respondent—Lord Advocate ( Young) and Asher. Agents— Messrs H. & H. Tod, W.S.; Messrs Valpy & Co., Westminster.
1873