United Kingdom House of Lords Decisions

But the ground upon which the judgment of the Court below proceeds really comes to this, that to read the words in the sense in which I think they ought to be read would be at variance with the main purpose of the deed as declared in the outset of it.

My Lords, I think that is carrying the principle of construction by intention too far. I can quite understand that where words are capable of being modified or qualified in the context in which they occur, it may be legitimate to ascertain how far one reading or another would best promote the intention of the maker of the deed, but I fail to see that the words at the commencement of the deed which have been referred to as imperative, and as requiring the construction which has been put upon them by their Lordships of the Second Division, come to more than a statement that the deed is made because the truster entertains certain intentions towards certain persons who are included in the deed, and who are benefited by it. But it does not bring about any contradiction between his intention and the words of the deed if you find there that besides the persons whom he intended to benefit, and whom he has benefited, some benefit is given to others. I think that it is a very dangerous canon of construction to admit what may be a partial statement of intention quite consistent with other objects to control the whole of the other language of the deed with the effect of striking out beneficiaries whom the truster may have intended to benefit. The words come to no more than this—“My intention is to do” so and so, and no doubt you may add this, “and I have accomplished that purpose by the provisions which follow.” In such a case the safer course always is to look to the provisions which follow, and to read them according to their natural and just construction.

Lord Herschell—My Lords, I am of the same opinion.

Lord Shand—My Lords, I concur. The truster in this case, it may very well be supposed, if he had contemplated the case that has actually occurred, would have made a provision to the effect that has been contended for on the part of the respondents here, giving effect to the view which the Court below has taken. While saying at the outset of this deed that his purpose was to enable the beneficiaries “to support the dignity and title of the Earl of Cromartie,” he might have thought it would better effectuate that purpose if heirs-portioners did succeed as males, that the eldest heir-portioner should have the income; but I can only say that if he had any such intention it is not expressed. The deed in its operative provision contains very distinct directions to the trustees. The trustees are expressly directed to give this income to the heirs-female, and it is conceded by the learned Judges in their opinions that the ordinary meaning of those words is that there shall be a distribution of the fund amongst all the heirs-female. I fail to see any room for the suggestion that there is ambiguity in that provision. The Court think there is not practically any ambiguity, and although it might appear and did appear that there was a failure to fulfil the intention of the truster, I should still give effect to the operative words of the deed because his directions are given in distinct terms, which however fail to carry out his intention. But, as has been observed by the Lord Chancellor and by my noble and learned friend who has already spoken (Lord Watson), he does not fail to carry out that intention, for in any view that may be taken of this deed the eldest heir-female succeeding to the estate of Cromartie does get material benefits under this deed.

Under these circumstances, my Lords, I am of opinion with your Lordships that the decision of the Court below in this case must be reversed.

Lord Davey—My Lords, I take it to be a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down, or qualified, by a recital or narrative of intention. Now, in this case, we are told by Lord Trayner (and it is a statement with which I entirely agree) in his judgment that “if these words are to be construed literally, then the destination must be read as conveying the proceeds of the trust funds to the second and third parties equally, who are heirs-female of Lord Tarbat.” In that I entirely agree, and that being so I concur in the judgment proposed.