United Kingdom House of Lords Decisions

Lord Chancellor—These appeals raise three separate questions, the first raising one question only. Sir Thomas Kirkpatrick claims a legacy of £1000 as having been given to him by the will. The words of the will are “to Roger Kirkpatrick …. the sum of £2000, and to each of his brothers the sum of £1000.” If one stopped at those words, the matter would not admit of argument, for Sir Thomas was one of seven brothers of Roger. There is nothing ambiguous or equivocal in the words. Unless, therefore, some other part of the will takes away this legacy, it must stand good as a legacy to Sir Thomas. The only reason given for taking it away is that the appellant has also a gift of half of the residue, and it was argued at the bar that this was a case of double gifts, and that one only could be allowed. In my opinion it is not at all a case of double gifts, nor anything like it. Why should they not both stand? The case of double gifts has not the remotest bearing on the matter. To construe this will as has been done in the Court below is nothing less than to make a new will for the testator, which no Court has any right to do. A Court has no business to interpolate and introduce words in order to alter what is clear and precise. The conclusion of the Court below could not be sustained without doing violence to the will, and the decision must be reversed, and the respondent must pay the costs of the first appeal.

As to the second point, namely, whether the legacies bear interest from the date of death—it is admitted that that is the general rule in Scotland. But it was argued that the legacies were payable only out of the heritable estate, and when that estate was sold. This is an entire mistake. The legacies are payable out of the saleable estate, which includes both heritable and moveable. There is nothing to restrict the legacy to the proceeds of the real estate. The general rule therefore applies, that interest is due on the legacies from the testator's death at five per cent., and the decision of the Court below must be reversed.

As to the third point, namely, whether the words on the margin, “All free of legacy-duty,” apply to all the legacies, it might have been doubted whether those words were altogether free from uncertainty, and whether they ought not to be disregarded. But certainly if they are to have effect, then there is no reason for confining them to the servants' legacies. The construction that the words apply only to servants' legacies adopted by the Court below is a most arbitrary construction. It is impossible so to limit the words.

And in this third point also the Court below has come to a wrong conclusion. The second appeal must therefore be sustained, and the interlocutor reversed, but in the second appeal the costs will come out of the estate.

Lord O'Hagan and Lord Selborne concurred.