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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Margaret, Helen, Elizabeth, Mary, and Agnes Scotts v George Carfrae. [1769] Hailes 324 (13 December 1769)
URL: http://www.bailii.org/scot/cases/ScotCS/1769/Hailes010324-0151.html
Cite as: [1769] Hailes 324

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[1769] Hailes 324      

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 LEGACY.
Subject_3 A Legacy, left to be divided at the legatee's death among her children, falls by the legatee's predecease.

Margaret, Helen, Elizabeth, Mary, and Agnes Scotts
v.
George Carfrae

Date: 13 December 1769

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[Fac. Coll., IV. 365; Dictionary, 8090.]

Auchinleck. The 1500 merks, provided by William Scott to his wife, Isobel Swanston, is made payable at the first term after his death, with interest from that term; “which sum, it is said, the said Isobel Swanston shall leave and distribute amongst her daughters at her death, as she shall think fit.” Isobel Swanston died before William Scott, and consequently the 1500 merks were never due to her; and, if not to her, neither to the daughters.

Monboddo. I think there is ground in law for supporting the claim of the daughters to the 1500 merks. It is the same thing as if William Scott had left a legacy to his wife; whom failing, to his daughters, as she should divide it. “She shall leave.” This shows the meaning of the testator. By the Roman law, this might not have been good; but, by our law, a legacy, to a person and his heirs, has been found effectual, though the trustee died before the testator.

Justice-Clerk. The 1500 merks is neither more nor less than a legacy to Isobel Swanston, in case she survived her husband. The intention was, that the daughters should continue in some measure dependant on her; but she predeceased her husband, and consequently the legacy fell. When there is a substitution, there may be a difficulty, unless circumstances point out what was meant; but there is no substitution here, expressed or implied.

Coalston. The provision of 1500 merks is a legacy to the wife: it fell by her predecease. Supposing that there had been a fideicommiss it would have fallen by the predecease of the wife.

Kaimes. There is no claim for the 1500 merks. Isobel Swanston was only bound to pay a like sum of 1500 merks to her children; no obligation on her to pay the sum, for she never had it.

Gardenston. According to a liberal interpretation of the clause, this is the same thing as if the father had settled the fee upon the children.

President. I cannot put a construction upon words which they cannot bear. I know of no intention but what parties express. Charles, Earl of Selkirk, meant to give his whole estate to Lord Daer,—and yet the Court gave Lord Daer no part of it. The supposed fideicommiss to the wife would not have prevented the subject from being attached and carried off by her creditors.

On the 13th December 1769, “the Lords found that the provision of 1500 merks fell by the predecease of Isobel Swanston, and did not transmit to the daughters.”

Act. G. Hepburn. Alt. R. Sinclair, Ilay Campbell. Rep. Hailes.

Diss. Pitfour, Gardenston, Monboddo.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1769/Hailes010324-0151.html