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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grant and Others (Cowe's Executors) v. Cowe [1887] ScotLR 25_80 (18 November 1887) URL: http://www.bailii.org/scot/cases/ScotCS/1887/25SLR0080.html Cite as: [1887] SLR 25_80, [1887] ScotLR 25_80 |
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Page: 80↓
A testator left a holograph will divided into clauses, by clause D of which it was provided that in the event of his surviving his mother certain legacies therein specified were to be paid. By a subsequent codicil he left a legacy, “which is to be handed over along with or at such time as legacies mentioned in clause D of this will are paid or handed over.” The testator predeceased his mother, and the bequests in clause D therefore lapsed. Held that the bequest in the codicil was unconditional, and that the reference to clause D had reference merely to the time of payment.
Henry Cowe died on 30th March 1881 leaving a holograph will with two codicils. The will was divided by the testator into clauses distinguished by letters and numbers.
By clause A he left the liferent of his whole property to his mother, except certain articles mentioned in clause B, which he bequeathed to special legatees.
By clause C he made certain provisions in the event of his predeceasing his mother, and by clause D he directed what was to be done in the event of his surviving his mother.
By the codicils annexed to his will the testator made various alterations upon its provisions. The second codicil revoked the special legacies in clause B. It contained the following bequest—“In addition to any legacy mentioned in this will by which he may be left any property, of whatsoever kind, to Peter Cowe, or his next-of- kind (as designated in a previous clause of this codicil), I leave the sum of Five hundred pounds sterling (£500), which is to be handed over along with or at such time as legacies mentioned in clause D of this will are paid or handed over.”
The testator predeceased his mother, and the liferent of his estate was paid to her till her death.
By the testator's predecease of his mother the provisions contained in clause D lapsed.
A question having arisen whether, as the legacies in D had lapsed, this legacy to Peter Cowe did not lapse also, the present special case was presented to have the question determined. The parties of the first part were the executors-nominate acting under Henry Cowe's will; the party of the second part was Peter Cowe.
The question for the determination of the Court was—Whether the parties of the first part were bound to make payment of the said legacy of £500 as a valid and subsisting legacy?
Argued for the first parties—The legacies and provisions in clause D were expressly made conditional upon Henry Cowe surviving the mother, and as that event did not happen, all these legacies and provisions lapsed. This legacy was expressly declared to be payable at the same time as the legacies in clause D, and as they could not be paid neither could it, and must be held to have lapsed.
Replied for second party—The reference in the codicil to the legacies mentioned in clause D was merely to fix the term of payment of the legacy now in question; the gift was unconditional, and should receive effect.
At advising—
Page: 81↓
The testator predeceased his mother, so D does not receive effect. Division C therefore regulates the succession, except in so far as it is controlled by the terms of the codicils which the testator annexed to his settlement. What we have to do in the present case is to construe a bequest contained in the last codicil, to Peter Cowe, a relative of the testator. It is in these terms—“In addition to any legacy mentioned in this will by which he may be left any property of whatsoever kind to Peter Cowe, or his next-of-kind (as designated in a previous clause of this codicil), I leave the sum of Five hundred pounds sterling (£500), which is to be handed over along with or at such time as legacies mentioned in clause D of this will are paid or handed over.”
Now, taking the words of the legacy by themselves they raise no difficulty. It is an unconditional bequest to Peter Cowe of £500, but then it is followed by these words—“To be handed over along with or at such time as legacies mentioned in clause D.” Now, the legacies in clause D can never be handed over to anybody, for the reason I have already mentioned.
What does the testator mean then by a reference to the “legacies mentioned in clause D”? I cannot tell, but nevertheless I cannot spell out of this direction anything like a condition adjected to the legacy of £500. There is here a simple direction to the trustees to hand over this bequest along with the “legacies mentioned in clause D” These words have little meaning, and one can only gather from them the testator's desire that the bequest should be paid over at the same time as the legacies in D. A direction as to the time of payment is not subversive of the bequest, provided the words of bequest are clear. Therefore I do not see how the circumstance that the legacies in D are not to be paid can operate to destroy this bequest.
I am for authorising the trustees to pay.
The Court answered the question in the affirmative.
Counsel for the First Parties— Goudy. Agents— Adam & Sang, W.S.
Counsel for the Second Party— G. W. Burnet. Agent— R. Bruce Cowan, W.S.
