Scottish Court of Session Decisions

William Ferrier, who was a domiciled Canadian, died on 16th February 1897, in Canada. He stood infeft at the time of his death in certain heritable property in Kirkliston, Linlithgowshire, Scotland, which he had acquired on the death of his first wife Mrs Julia Ferrier. The said property had been in the Ferrier family for sixty or seventy years, part of it having been purchased in 1826, and the remainder in 1832 by Mrs Ferrier's father Robert Ferrier, and he and his family were successively the proprietors thereof until Mrs Ferrier's death in 1889.

William Ferrier left a will whereby he gave and devised to his second wife Mary Rogerson Ferrier the liferent of a lot of ground in the town of Barrie aforesaid, and gave and bequeathed also to her for her sole use absolutely all the household furniture and effects of which he should die possessed. The will then proceeds to state—“And whereas by the will of my late wife Julia Ferrier I am the owner of certain freehold property in Scotland, and also received about the sum of four thousand dollars of personal estate after payment of all expenses in connection therewith: And whereas, although absolutely entitled to

Page: 446↓

the said real and personal estate of my said late wife Julia Ferrier, I am desirous of carrying out certain wishes of the said Julia Ferrier as expressed in a memorandum left by her with me, but which was not to be binding upon me in any way: Now to carry out the said wishes of the said Julia Ferrier, I do hereby declare that I intend to execute a will in accordance with the law of Scotland devising said real estate in Scotland to Ferrier Pace of Kirkliston, Scotland, farmer, his heirs and assigns, and have hereinafter devised a sum of four thousand dollars to the parties mentioned in said memorandum in the amount and proportions as described by said memorandum; I give and devise all of my estate both real and personal not hereinbefore specifically devised unto my executors hereinafter named and the survivor of them, and the executors of such survivor, upon the following trusts.” The trusts were then specified, and included the payment of 4000 dollars to various relations of Julia Ferrier “for the purpose of carrying out the wishes of the said Julia Ferrier.” The testator further declared that the provision made for his wife Mary Rogerson Ferrier should be in lieu of all dower to which she might be entitled out of his real estate. The testator then nominated and appointed executors and trustees of his will.

The “Freehold Property” referred to in the will of the said William Ferrier was the said heritable property in Kirkliston. Ferrier Pace was a nephew of Mrs Julia Ferrier. The testator did not carry out his intention as declared in the will “to execute a will in accordance with the law of Scotland devising said real estate in Scotland to Ferrier Pace,” although a mortis causa disposition to give effect to this intention had been prepared by a solicitor in Edinburgh, and sent on 4th November 1892 to the testator's solicitor in Barrie for execution.

After Mr Ferrier's death the testator's widow accepted the provisions conferred on her by the will, and the trustees and executors accepted office and proceeded with the administration of the estate. A question arose in the course of their administration as to whether the heritable property in Kirkliston aforesaid was carried by the will to the trustees and executors, or whether it passed under the will to Ferrier Pace, or whether it was undisposed of by the will and descended to the testator's heir-at-law.

For the settlement of the question a special case was presented to the Court by (1) Mr Ferrier's trustees, (2) Mr Ferrier's heir-at-law, (3) Mrs Mary Rogerson Ferrier, and (4) Ferrier Pace.

The questions at law were—“(1) Is the said heritable property in Kirkliston, Scotland, carried to the first parties by the will of the said William Ferrier? Or (2) Is the fourth party, the said Ferrier Pace, entitled to it under said will? Or (3) Does it descend ab intestato to the second party as the testator's heir-at-law in heritage?”

Argued for fourth party—The testator in the will sufficiently manifested an intention that the property should pass and belong to him (the fourth party), and in virtue of the will he was entitled to it. A clear indication of intention was all that was required, and such was shown here. The only object of making a declaration of intention in this will was to allow the intention to receive effect if the testator died before executing the formal deed— Hamilton v. White, June 15, 1882, 9 R. (H.L.) 53, opinion of Lord Selborne, 57; Colvin v. Hutchison, May 20, 1885, 12 R., opinion of Lord President Inglis, 955; Forsyth v. Turnbull, December 16, 1887, 15 R. 172; Theobald on Wills, 4th ed. 12; Jarman on Wills, 5th ed. i. 23 and 98; Jordan v. Fortescue (1847), 10 Beavan 259; Farrar v. St Catharine's College, Cambridge (1873), L.R., 16 Eq. 19.

Argued for second party—(1) The heritable property in Scotland had not been devised to the fourth party. It did not fall under the class of cases in which the Court had spelt out of ambiguous words a bequest on the part of the testator. It was neither a bequest by implication or a precatory bequest. The testator said he meant to do something, but he never carried out his intention. The clause showed that it was the intention of the testator to execute a formal deed, But he had never executed such a deed, and his intention must be held to have been departed from. The Court could not interpose and make a will for him— Mathews v. Warner, 1798, 4 Vesey Jr., 186, opinion of L.C. Loughborough,209; Hamilton, supra. In the present case it was admitted that a formal will carrying out his intention had lain beside him for years and had never been executed by him. That accentuated the contention that the testator had departed from the intention expressed in the will under dispute. (2) The Kirkliston property fell into intestacy, and was not conveyed by the residuary clause. The scheme the testator had in his mind was that the property should go to his wife's relations. “Specifically devised” in the residuary clause referred to property in Canada. The property in Scotland consequently descended to the second party as heir-at-law in heritage of the testator.

Argued for first parties—The property at Kirkliston was carried to them by the will whereby the testator gave and devised to his executors all his estate, both real and personal, not thereinbefore specifically devised. Such gift and devise carried this property to them in respect it was not thereinbefore specifically devised, and the testator never gave effect to his expressed intention to dispose of it by a separate will.