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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bogle v Bogle [1838] CS 16_1271b (6 July 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1271b.html Cite as: [1838] CS 16_1271b |
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Page: 1271↓
Subject_Settlement—Clause.—
1. Where the import of a settlement and codicils is free from ambiguity, there is no room for resorting to construction, but such import must be declared according to its undoubted tenor. 2. Circumstances in which this was applied.
The late Robert Bogle of Gilmorehill, merchant in Glasgow, left a, settlement and codicils, which made certain provisions on his younger children, and, inter alia, gave a liferent of £16,000 to his widow, with a power of disposal of the fee of £6000 thereof, after her death. The last codicil was in these terms:—“It is my will and desire that the £16,000 directed to be lent out and liferented by my wife, one-half of the sum shall be taken from my eldest son's proportion of the estate, and the other half in equal proportions from my younger children's share.” After Mr Bogle's death, his widow liferented the sum of £16,000, and executed a deed disposing of the fee of £6000. She died in 1833, and a question arose, whether the settlement had been so conceived that it was only so far as regarded Mrs Bogle's liferent, that one-half should be laid on the
portions of the younger children, leaving the entire sum of £6000, to be taken ultimately out of the portion of the eldest son; or whether one-half of the fee of that sum (as well as of the entire liferent during Mrs Bogle's life), should come off the portions of the younger children. For settling this question a multiplepoinding was raised in the name of Robert Bogle's trustees, and afterwards a declarator by the eldest son, Archibald Bogle, against the younger children, and the processes were conjoined. The main conclusion of the declarator was, that, according to the true intent of the settlement and codicils, “the one-half of the sum of £6000, disposed of by the widow of the said Robert Bogle, being the sum of £3000, forms a burden on, and deduction from, that portion of the estate of the said Robert Bogle falling to his younger children as before mentioned.” The younger children attempted to show from correspondence which had taken place soon after their father's death, and from various transactions which had been entered into, that Archibald Bogle was personally barred from pursuing the declarator, and bound to abide by that construction of the settlement for which they contended. They also maintained, that, independently of all specialties, theirs was the true conclusion of the settlement and codicils when viewed together. The Lord Ordinary held that, though the import of the settlement and codicils, as contended for by Archibald Bogle, was the most natural, yet the construction, as maintained by the defenders, was possible in itself, and had been so far adopted and acted on by all concerned, that Archibald Bogle was bound to abide by that construction of it, and, therefore, his Lordship assoilzied the defenders, and found the pursuer, Archibald Bogle, liable in expenses.
Bogle reclaimed, and
The Court unanimously held that the import of the settlement and codicils was that which he concluded to have declared in his declarator; that that import was plainly and unambiguously expressed, so as to leave no ground for raising a doubt as to the intention of the testator; that, in these circumstances, there was no room for resorting to construction, and that the import of the settlement must be declared according to its undoubted tenor; and that there were no specialties in the case to bar Archibald Bogle from having such import of the settlement declared. The Court, therefore, altered the interlocutor of the Lord Ordinary, and found, decerned, and declared “in terms of the conclusions of declarator.” Their Lordships at the same time dismissed the multiplepoinding, but found no expenses due to either party.
Solicitors: J. Court, S. S. C.— J. Robertson, W. S.—Agents.
