No. 4. general clause in Xaveria's disposition was not meant to include the estate of Cowgarth, or to disturb the course of succession prescribed by the entail of that May 19, 1873. estate. I have no doubt that for this purpose her mode of dealing with the Glendonwyn estate of Cowgarth may legitimately be referred to; and I think that in that v. Gordon, &c. alone, apart from everything else, we have enough to shew clearly that it was not her meaning or intention that the general clause should apply to that estate. In the first place, she not only did not convey it formally as she did the other two lots, but she did not even mention it by name in any mortis causa deed, as she might naturally have been expected to do in reference to an estate of so much importance. That is itself significant. But, secondly, after she had made her general settlement, and down to within a comparatively short period of her death, she, in various matters of importance, in formal deeds, dealt with that estate as one which, in her view, and according to her own understanding of her settlement, was not to go to her general disponee, but was to continue under the existing destination in the line of descent pointed out by the entail. That I hold to be beyond question, and there is no reason to suppose or ground for conjecture that her mind ever underwent any change on that subject. Whether she believed she had no power to take the estate out of the entail, or believed that she had such power but chose rather that it should remain within the entail, and dealt with it on that footing, is, in my opinion, of little moment, for, in either view, it is clear to me that she could not have intended that the general clause of disposition should apply to it, but must have intended the reverse. Therefore, even if it should be thought that in this class of cases the presumption is in favour of the general disponee, I think that the circumstances I have referred to are quite sufficient in this particular case to rebut the presumption. The respondent has referred to various letters pointing in the same direction, written by Xaveria relative to the management of the estate after the date of her general settlement. I am not prepared to say that in a question of this kind no such letter can be admissible, but I think it unnecessary to go into that matter, or into an examination of the several letters to see whether any of them are admissible, as I am of opinion that the case of the respondent is made out, irrespective of the letters. The matter of family relations has also been referred to, but I do not attach much importance to it in this case. Its features are not so distinctively marked as to impress me strongly. All that I think can be said of it is, that it harmonises with the rest of the case. I am of opinion that the appeal should be dismissed. LORD CHANCELLOR.-My Lords, if the rule as to the construction of testamentary deeds is the same in Scotland as in England, viz., that the intention of the testator is to be collected solely from the words which he has used in the instrument itself, extrinsic evidence being inadmissible except for the purpose of ascertaining the subjects of which those words are properly descriptive, or the subjects to which, if the words are ambiguous or inaccurate, they may appear (after proof of the facts shewing their ambiguity or inaccuracy), to be most properly applicable, I must confess that I have very great difficulty in understanding how the operation of general words, purporting to pass everything which the settlor might be entitled to at the time of his death, can be either enlarged or limited by extrinsic evidence, tending merely to shew that the settlor did or did not know or believe that he had a disposing power over some particular property, over which he had such power, or (whether knowing or not, that he had such power), that he did or did not actually intend to pass that property by those general words. I am bound, however, to acknowledge that evidence of this kind appears to have been received, and to have been more or less relied on, by the Court of Session, in the two cases which came to this House in Lord Hardwicke's time, Campbell v. Campbell, and Farquharson v. Farquharson; and that it was assumed, by most (if not all) of the Judges of that Court who lately decided Thoms' case, that such evidence was admissible, and might (in a case like the present) be decisive. All the authorities cited in the argument of this case are No. 4. v. Gordon, &c. consistent with each other, if this ground of decision be adopted. But, if this be so, the rule of law in Scotland, as to the influence of extrinsic evidence upon the construction of written instruments, differs from that of the law of England. May 19, 1873. That is a conclusion which, I confess, for my own part, I should accept with Glendonwyn very considerable reluctance, because the rule, in this respect, of the law of" England, appears to me to be a consequence flowing almost by logical necessity from another rule, common to the laws of both countries-viz., that every testamentary or mortis causa disposition of real estate must be made and authenticated by some instrument in writing; or, in other words, that the intention which is to receive effect must be found expressed in a written instrument. I should have thought it the sounder principle, that, subject to any limitation of their meaning afforded by the context of each particular instrument, or by any rule or presumption of law, general words in a testamentary deed ought to be applied to every subject of which, according to the true meaning of the words themselves, they are properly descriptive. Holding these views, I should have preferred to rest my concurrence in the judgment proposed to your Lordships upon the doctrine which (if the rules of the law of Scotland for the construction of written instruments are the same as those of England), would, in my judgment, be properly deducible from the decisions of this House in Campbell v. Campbell, and Farquharson v. Farquharson, a doctrine which is not (as my noble and learned friend has shewn) really at variance with the later decision of your Lordships' House in Leitch's case, and which in Thoms' case, although not reconcileable with the opinions delivered by a large majority of the Judges of the Court of Session, was maintained by a very weighty minority. The doctrine that mere general words purporting to dispose of a man's whole property in a will or mortis causa deed shall (unless there be something in the instrument itself to control that presumption) be understood of property, the succession to which, after the death of the testator, is not already regulated by a special destination to a particular class of heirs in a prior instrument, either made by the settlor himself or under which he holds, and that the settlor is not, merely by the use of such general words, presumed to intend to innovate upon any such special course of succession, seems to me to be neither unreasonable nor inconvenient. The word "revocation" or "evacuation" may not be apt to describe the effect produced by an instrument devising lands held under such a title to other persons, because (as was justly said at the bar) such an instrument would operate upon the absolute fee, legally vested in the person executing it, not by altering the special destination, but by withdrawing from it altogether the subject-matter of the settlement. If, however, substance rather than technicality is to be regarded, the analogy of revocation, properly so called, is not without a legitimate bearing on this class of cases. It is admitted that, if a special destination were contained in a prior deed (even though not strictly a mortis causa disposition), executed by the settlor himself, it would prevail against a subsequent disposition, by general words, of all the settlor's property, in a testamentary instrument; and it further seems to be the law of Scotland (on the ground that an intention to innovate on a special course of succession is not readily presumed), that when a reference to "heirs" is found in the dispositive words of an instrument executed by a settlor holding a particular estate, although without fetters, under a prior deed of entail (whether executed by himself or by any other person) it must, prima facie, be taken that the heirs intended by the later instrument are those to whom the estate would go by virtue of the destination in the earlier deed. The doctrine mentioned by the minority of the Judges in Thoms' case seems to me to depend on the same principle; and I find it easier to suppose that this doctrine was the real foundation of the decision of your Lordships' House (under the advice of so great a Judge as Lord Hardwicke) in the two cases of Campbell and Farquharson, than to refer these decisions entirely to the weight of the extrinsic evidence which was undoubtedly received in them. But, whatever may be their true ground, I do not think it would be possible to reconcile those decisions of your Lordships' House with a judgment of reversal in the present No. 4. May 19, 1873. case; and I concur in the propriety of the motion which has been made to your Lordships by my noble and and learned friend. LORD CHELMSFORD.-My Lords, I am of opinion that this interlocutor ought v. Gordon, &c. to be affirmed. No. 5. June 17, 1873. Trefusis. Ld. Chancellor (Selborne). Ld. Chelmsford. INTERLOCUTORS affirmed, and appeal dismissed, with costs. SIR WILLIAM FORBES, Appellant (Pursuer).—Dean of Faculty Gordon, Q.C.— HON. C. J. R. TREFUSIS, Respondent (Defender).-Lord-Adv. Young- Entail-Destination.—A deed of strict entail contained a destination to A, "and the heirs-male procreated of the marriage between A and " the entailer's daughter, "and the heirs-male of their bodies respectively; whom failing, to the heirs whatsoever of the bodies of such heirs-male respectively; whom failing, to the heirs-female procreated of the said marriage, and the heirs whatsoever of their bodies respectively," &c. Held (aff. judgment of the Court of Session) that on the succession opening by the death of the eldest son of the said marriage without male issue, his only daughter, as heir whatsoever of his body, was entitled to take in preference to the next heir-male of the said marriage. (IN the Court of Session June 6, 1868, ante, vol. vi. 900.) Sir John Stuart of Fettercairn executed in 1811 a procuratory of resignation and deed of entail whereby he bound and obliged himself, his heirs Ld. Colonsay. and successors whatsoever, to make due and lawful resignation of the lands and barony of Fettercairn, and others therein specified, " in favour of and for new heritable infeftment of the same to be given and granted to myself, and failing me, to the heirs-male of my body; whom failing, to Sir William Forbes, Baronet, of Pitsligo, and the heirs-male procreated of the marriage between him and the deceased Dame Williamina Stuart or Forbes, my daughter, his spouse, and the heirs-male of their bodies respectively; whom failing, to the heirs whatsoever of the bodies of such heirs-male respectively; whom failing, to the heirs-female procreated of the said marriage, and the heirs whatsoever of their bodies respectively; whom failing, to John Hepburne Belsches, Esq. of Invermay, and the heirs-male of his body; whom failing, to the heirs-male of the body of the said Sir William Forbes, Bart., in any subsequent marriage; whom failing, to Sir George Abercromby, Bart., of Birkenbog, and the heirs-male of his body; whom failing, to the heirs whatsoever of the body of the said John Hepburne Belsches; whom all failing, to my own nearest heirs or assignees whatsoever, the eldest heirfemale and the descendants of her body always excluding heirs-portioners, and succeeding without division throughout the whole course of succession foresaid as often as the same shall descend to females, and the daughter of the heir who shall happen to be last in possession of the lands and heritages before mentioned (whether such heir was served heir of tailie or not) succeeding always preferably to the daughter of any former heir so often as the succession through the whole course thereof shall devolve upon daughters, and which I hereby declare to be my true meaning, notwithstanding of the aforesaid general destination of heirs whatsoever." The deed contained the usual prohibitory, irritant, and resolutive clauses of a strict entail. Sir John Stuart died in 1821 without male issue. He was survived by his son-in-law, Sir William Forbes, who died in 1828 without having completed a title to the entailed estate, and who left three sons born of the marriage between him and the entailer's daughter-viz. (1) Sir John Hepburne Stuart Forbes; (2) Charles Hay Forbes; (3) James David Forbes. On the death of Sir William, his son, Sir John H. Stuart Forbes, in accordance with the destination in his grandfather's deed of 1811, succeeded to the entailed estates, and completed a title thereto. No. 5. June 17, 1873. Forbes v Sir John died 1866, leaving an only child, Lady Clinton, who, as heir Trefusis. of tailzie and provision to her father, completed a title to the estate, which was now challenged in an action of reduction and declarator at the instance of her cousin, the eldest son of Charles Hay Forbes, who was next brother to Lady Clinton's father. The pursuer pleaded ;-(4) By the entail of 1811 heirs-male of the bodies of heirs-male of the marriage of Sir William and Dame Williamina Forbes are entitled to succeed to the lands and estate thereby conveyed in preference to heirs-male or heirs whatsoever either of the said Sir William Forbes or of any subsequent heir of entail. On 4th June 1867 the Lord Ordinary (Jerviswoode) pronounced an interlocutor by which he sustained, inter alia, the pursuer's fourth plea, and reduced the defender's title. The defender reclaimed. The case was first heard before the First Division, and afterwards before the First Division with three Judges of the Second Division. The Court unanimously recalled the Lord Ordinary's interlocutor, and assoilzied the defender. The pursuer appealed. An objection was taken to the competency of the appeal under 6 Geo. IV. 120, sec. 25, which provides that "the decrees or orders of the Court of Session shall be final, and not subject to be complained of by appeal to the House of Lords, unless the petition of appeal shall be lodged with the Clerk of Parliament or the Clerk-Assistant within two years from the day of signing the last interlocutor appealed from, or before the end of fourteen days, to be accounted from and after the first day of the session or meeting of Parliament for the despatch of public business next ensuing the said two years: Provided always that when the person or persons entitled to appeal shall be out of the kingdom of Great Britain and Ireland it shall be competent for him or them to enter an appeal at any time within five years from the date of the last interlocutor, if he or they shall remain abroad so long, or within two years from the time of coming into Great Britain or Ireland, the time allowed to such person or persons for lodging his or her appeal in no case on account of mere absence exceeding the foresaid space of five years, together with the space that may elapse before the end of the fourteenth day from and after the session and meeting of Parliament next after the expiration of the said five years." The petition of appeal was presented on 25th March 1872, and on 23d April the respondent petitioned that it should not be received. This last petition was referred to the appeal committee, which met on the 24th day of April 1872, when the appellant verified the fact of his absence in New Zealand by the affidavits of Mrs Stuart Forbes, his mother, and Mrs Traill, his sister. The fact of the appellant's absence was not disputed by the respondent before the appeal committee, but he contended that his mandatary being sisted as a party became his representative, and that the case was thus brought within the first paragraph of the 25th section of the Act relative to parties in the kingdom, and the other provision relative to appeals by parties abroad was displaced. The appeal committee reported that the petition of appeal ought to be received, but that the respondent should have liberty to raise this question of competency at the hearing. The appeal was accordingly received, and the usual order made on the respondent to answer. On the question of the competency of the appeal the respondent in his case argued;-The mandatary is a party, and a necessary party, to the No. 5. Forbes v. Trefusis. suit, and also to this appeal. The parties who answer to the description of the "person or persons entitled to appeal" are Sir William Forbes and June 17, 1873. his mandatary; and to bring them within the proviso applicable to persons out of the kingdom they must both have been in that situation. Sir William Forbes and his mandatary, although two persons, form but one party to the suit, and represent but one interest. That interest is not only one but indivisible, and was fully represented in this country by the mandatary. And as he who represented that interest before the Court has been present throughout, it seems impossible to hold in this case that the "persons entitled to appeal" can claim the privilege of absence from the kingdom. Further, even assuming that Sir William Forbes had a separate right of appeal, it seems fatal to his claim for an extended period that, while personally absent, he was constructively present. To entitle a party to the privileges of absence he must have been, not merely personally, but as a party to the cause, "out of the kingdom." This cannot be said of Sir William Forbes. If he founds on his bodily absence, then he is not by himself a person entitled to appeal. He cannot take a step in Court without his mandatary. If, on the other hand, he refers to the spirit and meaning of the Act, and pleads his right as the party substantially interested in the suit, it is fair to inquire whether, in his character of pursuer of the action, he has been absent from the kingdom. So far as the spirit and meaning of the statute are the test he seems to have been throughout present by his mandatary. To allow this would practically enable any party to obtain latitude of five years for appeal to the House of Lords, simply by going out of the country and suing by a mandatary. The appellant in the appeal case argued ;-(1) As to his competency of the appeal-A mandatary is appointed merely to secure the opposite party's costs. (2) As to the merits of the appeal-The clear meaning of the destination is to call next after Sir William Forbes the heirsmale of his body by his marriage with the entailer's daughter; and on their entire failure, but only in that event, the heirs-female or heirs whatsoever of the bodies of these heirs-male. Had the entailer intended that each of the sons of Sir William Forbes should be instituted as the root of an independent stirps, and that the limitation, should have the same effect as if each son had been called by his name with limitation to the heirs-male and female of his body, apt and familiar words might easily, and would undoubtedly, have been used to express it. But, for the sake of argument, let it be assumed that the effect of the clause was as the Court have found. Be it that the introductory limitation was equivalent to a limitation to "the first and other sons," how do their Lordships get rid of the words of inheritance which follow, viz., "the heirs-male of their bodies respectively?" The Court altogether ignore the word "male." They read the substitution as if it were "the first and other sons of the marriage, and the heirs-general of their bodies;" because a limitation to heirs-male and female of the body is precisely the same as a limitation to heirs of the body, or heirs whatsoever of the body. If the first son died, whether in his father's lifetime or not, leaving a daughter, and survived by the other sons, the daughter would, on the reasoning of the Court below, take, to the exclusion of the 1 Gordon v. Gordon, Dec. 11, 1823, 2 S. 572; Darling's Practice, vol. i., p. 101; Shand's Practice, vol. i., p. 154-162; Buik v. Patullo and Ramsay, March 3, 1855, 17 D. 568; Smith v. Norval, May 14, 1828, 6 S. 852; Sandilands v. Sandilands, May 31, 1848, 10 D. 1091; Caledonian Railway Co. v. Turner, Dec. 21, 1849, 12 D. 406; Cairns v. Anstruther, March 16, 1841, 2 Robinson, 29. |