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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir William Stuart Forbes, Baronet v. The Hon. C. J. R. Trefusis and Others [1873] UKHL 2_Paterson_2056 (16 June 1873) URL: http://www.bailii.org/uk/cases/UKHL/1873/2_Paterson_2056.html Cite as: [1873] UKHL 2_Paterson_2056 |
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Page: 2056↓
(1873) 2 Paterson 2056
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 136
Subject_Succession — Entail — Heirs Male — Heirs whatsoever of the Body —
A destination in an entail was to F. and the heirs male of his marriage with S., 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 of the marriage of F. and S., etc.
Held (affirming judgment), That the only daughter of the eldest heir male of F. was entitled to succeed before the second son and heir male of F.
Subject_Appeal — Limitation of Time — Absence of Appellant abroad —
A pursuer and mandatory having lost their action, a petition of appeal was presented to the House of Lords three years after final judgment, the pursuer having been abroad at the commencement of the action and ever after:
Held, The appeal was in time within the meaning of 6 Geo. IV. c. 120, § 25. 1
_________________ Footnote _________________
1 See previous reports 6 Macph. 900; 40 Sc. Jur. 514. S. C. L. R. 2 Sc. Ap. 328: 11 Macph. H. L. 44; 45 Sc. Jur. 388.
Page: 2057↓
This was an appeal from the decision of the First Division as to the construction of a deed of entail.
In 1811 Sir John Stuart made an entail, by which he destined his estate, failing himself and heirs male of his body, to Sir William Forbes of Pitsligo, and the heirs male of the marriage between him and Dame Williamina Stuart, 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 other parties.
Sir John Stuart died in 1821. Sir William Forbes then succeeded to the estate, and possessed it till 1828. He had three sons and two daughters. The eldest son was Sir John Hepburn Stuart Forbes, who died in 1866, leaving an only daughter, Lady Clinton. The question was, whether Lady Clinton was next entitled or the next brother of her father, namely, the father of the appellant, Sir William Stuart Forbes. The present action was raised in 1866 by the appellant to reduce the titles under which Lady Clinton claimed to hold the estate, and Lady Clinton having afterwards died, the respondent, her eldest son, was made a party in her stead. The Lord Ordinary (Jerviswoode) decided in favour of the appellant. When the case was advocated to the First Division the Judges were equally divided; but three Judges of the Second Division being called in to assist, the Court, consisting of seven Judges, then became unanimous, and reversed the Lord Ordinary's judgment. The present appeal was then brought.
The Dean of Faculty (Gordon), and Anderson Q.C., for the appellant.—A preliminary objection to this appeal had been made, on account of more than two years having elapsed after the date of the interlocutor before the petition of appeal had been presented. A mandatory had been sisted along with the pursuer, who had been all the time living abroad, and it was urged before the Appeal Committee, that such mandatory was a party, and that the interlocutor had become final against him, and so the petition of appeal was too late. And the Appeal Committee allowed the question to be raised at the bar along with the argument on the merits. The respondent, however, does not now wish to urge the objection, and it need not be noticed.
As to the merits, the correct construction of the destination is, that, next after Sir William Forbes, the heirs male of his body by his marriage with the entailer's daughter were to succeed, and on their entire failure, but only in that event, the heirs female or heirs whatsoever of the bodies of these heirs male were to succeed. The Court below proceeded on the fallacy of assuming, that the entailer meant each of the sons of Sir William Forbes to 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. But the words are not apt to express this intention, whereas it would have been easy to express such an intention if that intention had existed. The Court below has ignored the word “male” in the words of inheritance following the limitation to the first and other sons, namely, “the heirs male of their bodies respectively.” They read the words “heirs male” as if they were “heirs general.” No reliance can be placed on the use of the word “respectively,” for that word is a mere expletive. If the intention had been as the Court below held, it would have been easy to express it in a clear and apt manner, as is seen in the cases of Anstruther v. Anstruther, 2 Bell's Ap. 242; Howden v. Rocheid, L. R. 1 Sc. Ap. 550; ante, p. 1711; The words “whom failing” were also erroneously construed by the Court below, and in a way which is contrary to Lockhart v. Macdonald, ( Largie case,) 1 Bell's Ap. C. 202. The proper antecedent to the words “whom failing” is the class of heirs male of the body called in the preceding substitution. There is no presumption in favour of the heir entitled by legal descent from the last heir in possession; and if the whole of the deed be looked at, there was a clear preference shewn for heirs male. There are instances of destinations like what the appellant contends is the true meaning of the present destination, in Dallas's Styles, 623; Gordon, M. 15,386; Creditors of Carleton, 5 Br. Sup. 252; Lockhart v. Gilmour, M. 15,404; Farquhar v. Farquhar, 1 D. 121; Earl of Kintore v. Lord Inverury, 4 Macq. 520; ante, p. 1179. The judgment of the Court below was therefore wrong, and ought to be reversed.
The Lord Advocate (Young), the Solicitor General (Jessell), and R. Lee, for the respondents.—The construction adopted in the Court below is the only one consistent with the language used in the destination. The destination divides the family into (1.) the heirs male procreated of the marriage and the heirs male of their bodies respectively, whom failing, the heirs whatsoever of their bodies respectively; and (2.) the heirs female procreated of the marriage, and the heirs whatsoever of their bodies respectively. The Lord Ordinary had by some mistake assumed, that Lady Clinton claimed under the destination “to the heirs female procreated of the marriage and the heirs whatsoever of their bodies;” whereas she claimed under the prior destination “to the heirs whatsoever of the bodies of such heirs male respectively.” The construction of the respondent is the only one which gives effect to all the words of the destination.
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Having arrived at that construction of those words, one material step has been made towards the rest of the construction, because we have thereby ascertained, that this testator intended several of the stirps to take one after another in the order of primogeniture, and not a single stirps to take according to the ordinary rules of simple descent.
I cannot help observing, that that construction is further illustrated by a comparison of this portion of the deed with those parts which follow it, because, when the testator intended a simple destination to the heirs male of the body of a particular person, he knew how to express it, for he goes on to say, “whom failing, to John Hepburn Belsches, Esq., Invermay, and the heirs male of the body of the said Sir William Forbes, Bart., in any subsequent marriage, whom failing, to Sir George Abercromby, and the heirs male of his body, whom failing, to the heirs whatsoever of the body of the said John Hepburn Belsches,” in every case expressing himself in the manner in which, if the argument for the appellant were sound, he might have been expected to express himself in the first part of the deed, for in truth the argument of the appellant is, that all this amounts in the result to neither more nor less than what would have been the effect of the deed if the testator had simply said, failing the heirs male of his own body, to Sir William Forbes, Bart., of Pitsligo, and the heirs male of his body by his marriage with my daughter, whom failing, to the heirs female of the said Sir William Forbes by the same marriage. For that, of course, it would have been quite unnecessary to have used the very special language which this testator has used, dividing the stirps instead of vesting them in one, using the word “respectively,” and contrasting the language of this part of the deed, in the manner in which he has contrasted it, with the parts which follow.
Now it is certainly a sound principle, that when you find words used, you should suppose them to be used for a purpose rather than without a purpose, and I think, therefore, that if we can place a reasonable construction upon the words which occur here, and which are rendered superfluous by the appellant's argument, we ought to do so. The appellant's argument turned very much upon what was said to be the proper or technical force of the words “whom failing,” which it was said were words intended, after the exhaustion of one limitation or a series of limitations, to introduce another. To that proposition I see no reason whatever for taking the slightest exception, but it is in truth a mistake to suppose, that it is a proposition in any way inconsistent with the judgment of the Court below. The same effect, neither more nor less, is given by the argument on both sides to these words “whom failing.” Both agree that on the failure of the one line they are meant to be introductory of another. The question is not as to the effect of the word “failing,” but as to the effect of the word “whom.” What is the antecedent to which the word whom is relative. The Largie case has no tendency whatever to throw the least light upon that which is the only question in this case, because it is admitted by the respondents in this case, that the destination “to the heirs whatsoever of the bodies of such heirs male respectively” is not to take effect until the failure of the heirs male of the bodies previously
Page: 2059↓
Having arrived at that, I cannot but think, that the effect of the word “respectively” introducing the gift over, which commences with the words “whom failing,” and recurring at the end of that gift over to the “heirs whatsoever of the bodies of such heirs male respectively,” such heirs male being there clearly such sons, is to import the force of that word “respectively” into the entire sentence, and that is not really distinguishable in sense from what it would have been if, as it was put to the counsel in the course of the argument, it had been “whom respectively failing,” or “whom failing respectively,” the effect of it being, that the heirs of the bodies of each stirps are to succeed in this manner—the heirs male of that stirps first, the heirs female of that stirps afterwards, but both the heirs male and the heirs female of that stirps succeeding next respectively to the parent towards whom they stand in relation of heir, and are meant to stand in the relation of successor. That word “respectively” is, in its natural and proper sense, and with the force which it constantly has in these legal instruments, a word at once of distribution and connexion. It distributes when a series of persons are intended to take, or to take in a certain order or manner, and it is a word of connexion, because it brings together by reference the heir to the ancestor, the issue or the child to the parent. So understood here, it seems to be only a short term for expressing a series of limitations, in each of which, as I understand it, and as the Court below has understood it, the whole issue of each stirps is to be exhausted before you go on to the subsequent limitations in this deed, the male issue, however, being always preferred to the female.
Now I do not know that we really need more to support this construction than the reasons which I have offered to your Lordships, and which in truth are more fully and more ably expressed in the judgments in the Court below, particularly the judgments of Lord Curriehill and Lord Benholme. But I cannot help saying, that although I think it was quite right of the learned counsel for the respondents not to lay their main stress upon subordinate clauses in the deed, which after all assist rather by way of illustration than by direct construction, yet I cannot but think, that the subsequent clause as to the rule which is to apply upon the succession of daughters is very much more consistent with the construction placed upon this instrument by the Court below, than with that contended for by the appellant. Your Lordships will observe, that the effect of the appellant's construction is to reduce this to the simple elements which I mentioned at the outset, the single stirps of Sir William Forbes, or rather the testators daughter as the wife of Sir William Forbes, there being a preference of the male issue descending from that stirps over the female, but subject to that preference, a simple gift first to the male issue of that stirps and then to the female. On the other hand, the construction which the Court below has adopted, and which I think is hardly now contested as far as the division of the stirps is concerned, (I mean as far as the construction of the words “heirs male procreated” and “heirs female procreated” are concerned,) makes several stirps each to take successively the one after the other.
Now, with which of these two schemes of the will is this declaratory clause more consistent? Your Lordships will see, that the declaratory clause contemplates the rule to be followed for female succession, the succession of daughters, always so often as the succession through the whole course thereof shall devolve upon daughters, that rule being, that the daughters shall take with reference to the latest taker, I mean with reference to the last state of possession by the heir from whom that daughter takes—that, for instance, if there should be a daughter of the last taker in the male line, that daughter should succeed before the daughter of any former taker in the male line. I think that that rule, fairly understood, will also give a clue to the mode of succession if that daughter's line were exhausted, or if the last taker in the male line died without any issue at all. Then you are still to look to the last previous possessor, and the female taker is to take in order of possession reversed, that is, that the heir representative of the family in the preferred male line transmits to his own daughter as his successor, and if that line fails, you then go back to the next preceding male heir in the preferred male line, and his daughter will take in preference to any former ones. That is a mode of succession at least more consistent with the division of the whole into stirps, and the succession of the females of each stirps after the failure of the males of that stirps, than the notion, that all the males of a single stirps are to be completely exhausted, and then all the females are to come in.
However, I agree entirely with what was said, that after all, from these subsidiary clauses, illustration rather than proof is to be derived. All that I venture to say is, that, taken in the manner in which they have been taken by the Court below, the result is something consistent with the ordinary scheme of a family settlement in strict entail, where you have a division like this into a certain number of stirps, and being so, I think that the opposite view is very much less consistent with the ordinary scheme of will. Therefore I think the antecedent probability concurs with the conclusion at which I arrived from the words themselves, and particularly
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Dean of Faculty.—My Lords, perhaps you will allow me to make an observation with reference to the costs. I shall not say anything of course as to the costs of the principal appeal; but there was an objection taken to the competency of the petition of appeal presented by my clients, on the ground that their application was too late. The same proceeding took place in this House in the case of Kerr v. Keith on the 10th of June 1842, 1 Bell's Ap. 425; and there the same adjournment of the objection from the Appeal Committee to the House took place as in this case. The point was argued out on either side, and the result was, that, while the judgment was affirmed with costs, your Lordships' House made the following order with regard to the objection to the competency of the appeal, and the costs of it: “And it is also further ordered, that the said petition to dismiss the original appeal as incompetent be, and is hereby refused.” That, I presume, unless your Lordships hold, that the objection was withdrawn at the bar in this case, would require to be repeated here, “and that the said respondent William Keith” (that was the party who took the objections to the competency of the appeal) “do pay or cause to be paid to the said appellant in the said original appeal, the cost incurred in respect of the case and proceedings in this House arising out of the said petition, the amount thereof to be certified by the Clerk assistant.” Now the only difference between that case and the present is this, that in that case the validity of the objection was argued at the bar of the House, whereas, in the present case, it was not argued. I do not know that that makes much difference.
Dean of Faculty.—Yes; I think so, because it implies that it was scarcely an arguable point. We have been put to some expense in consequence of this objection being taken, and the precedent in the case of Kerr v. Keith shews the way in which your Lordships' House has disposed of a similar objection before.
Lord Advocate.—Perhaps I might be permitted to say, as we are the respondents upon this application, that I should not, after the motion which has just been made, or the opinion which has just been expressed by the noble and learned Lord, say a word upon the substance of the question of our being subjected to these costs, but I presume the costs will only be the costs of the answer to the petition. The circumstances in this case were these. I can state them in a sentence of six words.
Lord Advocate.—Yes, the appeal was not in time.
Lord Advocate.—That would be merely the attendance of the agent. The appeal was presented after a lapse of close upon five years, and it was presented by a party who is in precisely the same position now as he was throughout in the Court of Session. A petition against the competency of the appeal was presented, and an agent appeared before the Appeal Committee to whom it was remitted, and the Appeal Committee reserved the question for the consideration of this House.
Page: 2061↓
Lord Advocate.—Of course not. I only wanted to direct your Lordships' attention to the fact, that it was merely the costs occasioned to the appellant by this objection to the competency of the appeal.
Lord Chancellor.—I think it would be best to put it in this general way: The costs which arose out of the petition presented to the Appeal Committee against the competency of this appeal.
Dean of Faculty.—The question was reserved to be argued at the bar of your Lordships' House; and you will find statements relating to it in the cases submitted to your Lordships; so that the preparation of the cases involved dealing with the question of the competency of the appeal.
Lord Chancellor.—I think, my Lords, it would be much better to use words which do not anticipate the function of the taxation of costs, but which express the principle upon which the House proceeds, and with that view I propose to your Lordships these words:—“The costs occasioned by the presentation of a petition against the competency of the appeal.”
Interlocutors affirmed, and appeal dismissed with costs—the respondents to pay the costs occasioned by the presentation of the petition against the competency of the appeal.
Solicitors: Appellant's Agents, Adam and Sang, W.S.; William Robertson, Westminster.— Respondents' Agents, Mackenzie and Kermack, W.S.; Loch and Maclaurin, Westminster.