United Kingdom House of Lords Decisions

My Lords, no such case arises here before your Lordships. The legal operation and effect of the language used, and its technical import, are not denied. And when one speaks of the residuary estate it is a fallacy to speak of the residuary estate as if it were an ascertained something. The residuary estate, although it is a compendious and convenient form of expression, means that which remains after the obligations which primarily rest upon the personalty have been discharged, and it seems to me that there is no inconsistency in reading the two propositions together:—“I leave one of these two estates to my widow, and after she has discharged all the legal obligations, including this and all other legal obligations to which the personalty is liable, I also make her the person who shall benefit by my bounty in receiving all that remains after the discharge of this obligation.” My Lords, that seems to me to be the rational mode of dealing with these dispositions, reading these testamentary instruments together. Under those circumstances it appears to me that the supposed inconsistency—the supposed conflict of intention which is suggested as arising—is entirely disposed of.

My Lords, I therefore agree entirely with the judgment pronounced by the Court of Session, which I think, following the language of the question put to them by the parties, is sufficiently accurate to show what they intended to convey, and under these circumstances I move that the appeal before your Lordships be dismissed and the interlocutor affirmed with costs.

Lord Watson—My Lords, I agree with the Lord Chancellor in thinking that this is a very simple case. I have heard nothing in the course of the ingenious arguments of the learned counsel to suggest any doubt as to the propriety of the judgment of the Court of Session.

The various writings which have been brought under the notice of your Lordships must, I think, be read as one deed constituting the settlement of Mr Stirling Crawfurd. In noticing the terms of his settlement it is sufficient to refer to those provisions which directly bear upon the question argued before us with regard to the warrandice of the conveyance to the lands of Balornock and others. He constitutes the appellant his executrix and universal trustee of his estate, which imposes upon her the character of his personal representative, liable to the payment of his moveable debts. Then he gives her a legacy payable by herself in that character of £50,000. Then he conveys to her two estates with warrandice, and imposes upon her as his personal representative, in language technical and of well-known application in the law of Scotland, an obligation to make good that warrandice; and after all these provisions are made he bequeaths to her the whole residue of his estate. What is the residue of his estate? It is simply so much of his personal means as may remain after the whole antecedent purposes of the deed have been effected, after debts and legacies have been paid, and the obligation of warrandice discharged.

But it is urged that as the result of these provisions we must in point of fact infer that the testator did not mean to charge his personal representative with the burden of the warrandice, and that he meant to impose the obligation upon the fee of the entailed estate. If that was his meaning, it is a singular thing that he should have used words which are ineffectual to create a real burden, and are constantly used by Scotch conveyancers to import an obligation affecting personal representatives.

Lord Macnaghten concurred.

Interlocutor appealed from affirmed, and appeal dismissed with costs.