United Kingdom House of Lords Decisions

Lord Chancellor—The point in this case is a very short point and it is this — There is a direction in the fourth codicil of this deceased gentleman to the following effect:—“I direct my trustees, after paying all debts, legacies, annuities, and life interests affecting my personal estate, to make payment to the heir for the time being entitled to succeed under the said deed of entail” of certain sums of money. The question is whether those words mean the heir who shall in fact have title by virtue of the deed, or the heir whom the deed designates as the person entitled to succeed. I agree with the decision of the Second Division that under this language you have to ask who is the person whom the deed declares to be the heir. It is a question of what the deed says, not what the deed does; and so, although it is no longer operative, it can still indicate the heir pointed to in the codicil.

In regard to the question of costs I do not perceive at your Lordships' bar any appearance on behalf of Sir Victor Mackenzie. Therefore, I move your Lordships that this appeal be dismissed with costs in the ordinary way.

Lord Macnaghten—I agree.

Lord Robertson—The respondent, Sir Victor Mackenzie, is unquestionably the person entitled to this residue if the entail of Kintail still subsisted.

The proposition maintained by the appellant is really this, that the testator's intention to give this residue to Sir Victor, his lineal descendant, was subordinate to his intention to give it to an heir of entail, and that as the entailed title has gone by the board the testator has expressed no intention applicable to the situation. It seems to me that this is to erect out of words of style a structure of intention wholly nonexistent. The testator was dealing with what he was making an entailed estate, and he therefore calls the persons whom he is benefiting heirs of entail. But the substance of a bequest of residue is the choice of persons; and Sir Victor is the designated person in the present case.

On the question of costs I have only to say that I can see no ground at all for granting the appellant costs out of an estate which we hold to be determined by this will as the effective instrument, his whole argument being that the will has no application to the case in hand. As to the position of Sir Victor, I entirely concur with what my noble and learned friend on the Woolsack has said.

Lord Atkinson—I concur.