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Paxton's Trs. remains of high authority; but its authority arose, in the first place, upon the construction of a very special and particularly worded will, and where it ventured, in the language of the late Lord President Inglis, to go beyond the point of construction into the region of general principle, it enounced two propositions, neither of which, in my humble opinion, are in the slightest degree violated in that interpretation of Mr Young's settlement which I agree with your Lordships should be here pronounced.

HOUSE the brother sharing per capita in the division | called Paxton principle were introduced, have OF LORDS. between them and the sisters. But having violated the true intention of these subsequent done so much I think the whole value of the testators. Young's Trs. v. expression is exhausted. The fact that surYoung. vivors of the sisters took the share of the preNovember 26, decessors is fatal to the idea of previous stirpital division. There are cases where the words used are such that the Court is bound to give an interpretation which in its heart it is perfectly certain is not what the testator would have wished, This, I am glad to say, is no such case. I venture to repeat the cogent words of Lord Sands: "But if one figures him perusing the settlement here in question after the death of the last surviving sister, and putting to himself the question: How do matters now stand?' I confess I have little difficulty in concluding that his answer would have been: I left my estate among my sisters and my brother William's family; but as my sisters are all gone, William's family will get the whole.'

I move your Lordships that the judgment be
reversed and that the Court of Session be
directed to rank and prefer the claimants, the
family of William, to the whole fund in

As the parties have agreed, the costs in this
House will be payable out of the fund in medio.

Lord Atkinson.—I concur.

Lord Shaw of Dunfermline.-This case depends entirely upon the construction of the residuary clause of Mr Young's settlement. I venture to read it again. It is as follows: [His Lordship read the clause].

When Mr Young died, his three sisters had predeceased him; the children of his brother William Stuart Young survived. The question in the case is, Shall these children take the whole residue, or shall three-fourths thereof, which their aunts would have taken had they all survived the testator, fall into intestacy?

In such cases it is apt to be forgotten that the cardinal danger is in endeavouring to treat a rule adopted by the Courts in the construction of one will as a rule of application to other cases in which the situation of the testator and his devisees, and in particular the words of his particular settlement, were different from those in the case giving rise to the supposed precedent. There are few cases in the books more illustrative of the difficulties emerging from such a mistake than the case of Paxton's Trs. v. Cowie (13 R. 1191). The Courts in Scotland, as will be presently shewn, in case after case have refused to accept the argument of a general principle governing subsequent cases where in these subsequent cases the words of construction under the particular will would, if the so

On the first point be it observed that in Paxton's case the trustees were first to divide the whole estate into two halves, and then with regard to one of the halves to divide it, £200 to Mrs Crabbie, the testator's late wife's sister; and then the remainder of the one-half of the estate was dealt with in these words: "The remaining portion to be equally divided between my late wife's sisters, Joan Brown Smith or Aikman, Mary Ann Smith or Swanston, my late wife's brother, Robert Smith, and my late wife's niece, Jeannie Aikman Swanston; but in the event of the said Mary Ann Smith or Swanston predeceasing me, her portion to be equally divided among her surviving daughters."

In my view that will of Mr Paxton had partition written all over it. The estate was divided into halves, and with regard to the second half, which raised the point at issue, £200 of that was cut out of it definitely for Mrs Crabbie. The remainder was treated as the remaining portion to be equally divided. There was no clause of survivorship with regard to that portion; but in regard to one of these equal devisees there was a clause dealing with her predecease of the testator, and it was in the words" her portion to be equally divided among her surviving daughters." It is not only that in Paxton's Trs.' case the door was not opened by a clause of survivorship or by other expressions shewing that survivorship was in the testator's mind, but the door was definitely closed to such ideas, and the language used by the testator was pretty plainly indicative of partition being in his own mind as a real thing into shares or portions, while survivorship, except in one case, was not an admissible notion in regard to the other cases. In my opinion this was about as unlikely a precedent of general value in the construction of wills as could be imagined.

The truth is that, on its merits, the general principle explained by Lord President Inglis was practically apart from the individual case, and did not spring out of the Paxton will provisions. It was not in conflict with well-known rules

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of construction; but its value was, and is, that into intestacy, but that it would accresce to the it explained them clearly. other grandchildren."

Said the Lord President: "There is a rule of construction settled. . . . to the effect that when a legacy is given to a plurality of persons named or sufficiently described for identification equally among them,' or 'in equal shares,' or share and share alike,' or in any other language of the same import, each is entitled to his own share and no more, and there is no room for accretion in the event of the predecease of one or more of the legatees. . . . . The application of this rule may, of course, be controlled or avoided by the use of other expressions by the testator importing an intention that there shall be accretion in the event of the predecease of one or more of the legatees."


The learned Lord President then goes on to the Paxton case to shew that there are no such expressions, that, on the contrary, there is indication of a general intention that the estate should be equally divided between his own relations and his deceased wife's relations. But as regards the division between those of his wife's relations who are made legatees, there are no words or expressions indicating intention, except those contained in the clause specially under construction." Coming accordingly back to the clause in Paxton, it was a clause which, as I have expressed it, had partition on the very face of it and all over it. If there is any principle of construction laid down in these sentences, it is that the particular words of the particular will must be looked at to determine what, on a fair reading, the Court concludes a testator's intention to have been.

Illustrations that it has been so regarded in Scotland appear from the following cases, in each of which it is to be observed that the conclusion reached by the Court was argued to be inconsistent with the Paxton doctrine. In Muir's Trs. v. Muir (16 R. 954), trustees were directed to hold the whole residue for behoof of and equally among the children of his only child, W. C. M., the shares, with accumulations, to be paid to them on their respectively attaining twenty-five years of age. Lord M'Laren took occasion to refer to Paxton's Trs. and the rule thereunder, and he said: "The first condition for the application of that rule is that the persons to whom the legacy is left must either be named or sufficiently described for identification. It cannot, therefore, apply to a class of persons of unascertained number, and therefore I think that Paxton's case has no application to the present. . . . . Here, however, the class is unascertained, and some get their shares in liferent while others get theirs in fee, while, as regards the sons' shares, there is an express clause of survivorship, and therefore, if a son died, the result would be not to send his share



The importance of Muir is that it breaks down Young's any general application of the supposed Paxton Trs. v. principle. It also appears to indicate that when Young. there are expressions in the will which indicate November 25, that the idea of survivorship was in the testator's mind, even although that particular survivorship did not cover the actual case of the individual legatee who had predeceased, the Court will be slow to throw into intestacy any portion of the estate. In the present case, where an expressed clause of survivorship was inserted applicable to the three sisters of the testator, then the idea of the partition of the estate into three-fourths to the daughters, each of these three being separated from the other and this partition being read as the meaning of the will at the time of its execution-all this appears to me, for a reason which I will presently give, to be in violation of well-known rules of construction. It is up against the presumption against intestacy, but it is further up against the rule that a will speaks a morte testatoris.

In Menzies' Factor v. Menzies (1 F. 128), where the same Paxton argument was again used, there was a legacy to the grandchildren of a brother of the testator to named grandchildren of William, a brother of the testator-" the sum of £2000 equally among them share and share alike." The testator also left legacies of £330 to a female and £670 to two male grandchildren of a brother Kenneth nominatim and equally between them and the survivor. There was no clause of survivorship with regard to the £2000, but in the will there was found a further direction, that a sum of £3000 should be applied in paying the £2000 and the £1000, and this phrase was employed: "Bequeathed to the grandchildren of William Menzies and the grandchildren of Kenneth Menzies." That was sufficient to the Court as indicative of the intention which was given effect to, that the legacy to William Menzies' grandchildren, although left equally, share and share alike, and with no express clause of survivorship, did, in the case of a grandchild who predeceased the testator, accresce to the survivors.

The case seems remarkably near the present, and the judgment of Lord M'Laren is again of great value.

In Roberts' Trs. v. Roberts (1903, 5 F. 541) Lord Kinnear says of the will in that case: "It is manifest that the testator did not intend a series of separate legacies, but a joint legacy to a class, because he assumes that the persons who may ultimately turn out to form the class are not yet ascertained at the date when he makes his bequest," and then he adds the following, which I think is of great importance: "It makes no difference that the conveyance is


Trs. v.




directed to be made to them 'equally among OF LORDS. them,' because that expression does not necesYoung's sarily import a separation into specific shares." For my own part, I think that too much in Young the decisions has been made of the expressions November 26, as a class" or share and share alike." I have ventured to cite these cases as putting an end to the proposition that Paxton's Trs. stands as an authority for anything more than was decided in the case of Paxton itself. It can only apply to subsequent cases in which the will under construction is identical in terms or uses terms which, though a verbal variation, are yet identical in effect. It cannot apply to admit intestacy-under the second head of Lord President Inglis' doctrine-where there are indications of a contrary intention appearing in other parts of the will.

Lord Blackburn in his careful judgment says: "I can find nothing in the deed to entitle me to give effect to what I think may have been the testator's intention." For the reasons which I am about to give I do not have much doubt that the judgment arrived at in the Court below is contrary to the testator's will.

The argument was that a sound construction of the will divided the residue definitely into four parts, the three sisters getting one part each and the brother's children getting the remaining fourth. But the will provides, in the case of the sisters, specially for the survivors of them. It does not appear to me to be in accord with the intention of the testator to suppose that when the first of these ladies died his will meant that the estate should still be looked upon as divided into four parts; it appears pretty clear to me that he must have thought, one sister having disappeared, that the estate was then divided into three parts. When another sister died, his view would be that his estate would be divided after his death into two parts, and when the last of the sisters died, also predeceasing him, I can hardly think it would enter into his mind that he was dying leaving a will which conveyed to his brother's children only one-fourth of his estate.

But it is exactly what was in his mind at that time that is the important question in the case, for the will speaks a morte: and here it is, I think, that a cardinal error is apt to creep into these cases. I look to see from the terms of this will what it was that was to be divided. I feel certain that the testator could not have meant that it was one-fourth only of his estate. The language he employs is, having conveyed the estate to trustees, language of direction to realise the whole residue of my means and estate and to divide the same," that is, the whole residue, Mr Young made a will, the language of which applies in terms to the division, not of a fourth of his estate but of the


whole of it, and the doctrine of intestacy not being presumed need hardly be appealed to in this case, for the language of the settlement itself expressly refutes that idea, it being inclusive and comprehensive and contrary to the idea of a division being permissible of anything less than the whole estate.

I agree with Lord Sands' view upon this subject. My own opinion is largely controlled by giving effect (1) to the principle of not presuming intestacy; (2) to making the will speak a morte; and (3) to observe that the comprehensiveness of the direction for division is exclusive of the idea of partition which is founded on. Mr Young died, I am convinced, fully thinking that his will covered his whole estate, and upon a sound construction of its provisions I think that the principle, not of partition but of totality, should come into play. I will only add, as to the word "divide employed, that it simply means paying over. In the event of three of the devisees disappearing, then it means paying over the estate to the fourth. Had his will said in terms "pay over my whole estate to the survivor of my sisters and the children of my brother per stirpes" (that is to say, and that is, the entire meaning of it), not per capita, and one sister had survived, then that direction would have resulted in the sister getting one-half and the family of the brother the other. When all the sisters predecease, then the administration proceeds properly upon the footing, as I read the present will, of conveying the entire residue to the brother's family. They were, in my view, conditionally instituted to the whole.

I agree that this appeal should be allowed.

Lord Wrenbury.-The question for decision is as to the true construction of this will, or, to put it more exactly, the question is as to who in the events which have happened are the beneficiaries under this will indicated by the language the testator has used. In answering this question it is worse than waste of time to confuse counsel by looking at other wills more or less like the present, and to argue from the meaning which has been attributed to those wills as to the meaning to be attributed to this one. There are certain principles of construction which have to be borne in mind. I may instance the rule that the Court leans against an intestacy. But if those principles are recognised and are not overlooked, the only safe course is to read the testator's will, learn what are the events which have happened, and ascertain who he has said are in those events to benefit under his will according to the language he has used.

If a testator gives £1000 to be divided among A, B, and C in equal shares, no authority is

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wanted for the proposition that he has given to each of them £333, 6s. 8d., and that if one of them dies in his lifetime the gift to that one fails because he has predeceased the testator. There is then an intestacy as to that share. So, if the testator gives £1000 to be divided among A, B, and the children of C equally per stirpes, there is in like manner a gift of £333, 6s 8d. to each of A, B, and the stirps of C-the stirps counting as one person and no more. The case of Paxton's Trs. v. Cowie (13 R. 1191), to which we have been so insistently referred, did no more than affirm this proposition, adding only that, according to the law of Scotland, there was no jus accrescendi. I should not have thought that it required much argument to establish that this is so. It will result from what follows that for the decision of the present case the case of Paxton's Trs. v. Cowie gives no assistance except in affirming the very obvious proposition with which I started and which does not govern this case.

The language here to be construed is as follows: "I direct my trustees to realise the whole residue of my means and estate, and to divide the same among my three sisters before mentioned and the survivors of them and the children of my late brother William Stuart Young equally per stirpes." The words "per stirpes" qualify the word "equally." They do nothing more. In their absence the children of the brother would be counted and would take per capita. In their presence the stirps counts as one person and no more, and the share of the stirps is divided per capita amongst the children.

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Next I take the words "and the survivors of them." If a testator gives to " A, B, and C and the survivors of them," it is obvious that the words introduced by the copula “and” do not add more persons to A, B, and C. The surviving persons are already among the persons named. The words "and the survivors do not increase, but, on the contrary, reduce the number of the beneficiaries named who are to take. The words are not cumulative but alternative, and none the less because the word used is "and." This sentence is elliptical. The meaning of the sentence as completed by adding the words elliptically omitted is this, "and if any of them shall die in my lifetime," or, in other words, " and in case survivorship shall occur "-then I give to the survivors. There is in the case of death in the testator's lifetime no gift to the person who so dies; there is nothing to pass to another by reason of the failure of that person to take. The survivor is the only person to take. If one of the sisters, say A, so dies, the persons to share equally are not four but three, viz. the two survivors B and C and the stirps of the brother.

By way of contrast, if at the testator's death HOUSE the stirps of “ my late brother William Stuart oF LORDS. Young" had died out, there would have been Young's a failure of a person to take that share, and Trs. v. there would, as to that share, have been an Young. intestacy, for there is no alternative gift by November 26, words of survivorship or otherwise. The date at which survivorship is to be ascertained is obviously the date of the testator's death-the date at which the will takes effect.

Upon this reason I find no difficulty in ascertaining the persons whom the testator name as his beneficiaries. They are such of his three sisters as survive him and the children of his late brother per stirpes. If all his sisters survive him, the division will be in fourths, for the stirps of his brother takes only one share. But if, as happened, all his sisters predecease him and the stirps of the brother has not died out, the stirps take the whole, for the division is to be made equally among beneficiaries, of whom only one survives.

In my opinion the judgment of Lord Sands is right, and this appeal must be allowed.

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Workmen's Compensation-Workmen's Compensation Act, 1923 (13 & 14 Geo. V. cap. 42), section 14 (c) -Stoppage of payments-Recorded award-Application by employers for medical reference Stoppage of payments by them-Charge by workman on recorded award Process of suspension of charge brought by employers-Consignation by employers in suspension process-Held (reversing judgment of First Division) that the right of the employers to stop payment and to consign under section 14 (c) of the Act of 1923 arose whenever they "made application" for a medical reference, even although the issue went to an arbitrator for determination and not to a medical referee, and cause remitted to Court of Session to grant a sist of execution on the recorded award until the determination of the arbitration.

(Reported ante, 1926, S.L.T. 643.)



OF LORDS, Appeal from Interlocutor of the First Division (The Lord President, Lords Sands, Blackburn, and Ashmore).



Benhar Coal Co. Ltd. v. Dee.

December 3,


Appeal was taken to the Sheriff, but he upheld the determination of the sheriff-clerk.

This, so to speak, hung up the proceedings under subsection (c) of section 14, and the

The employers appealed to the House of employer, probably thinking it would be more


The appeal was heard on 28th October 1926. On 3rd December 1926 their Lordships reversed the interlocutor appealed against, and remitted to the Court of Session with a direction to grant a sist of execution in order to await the result of the arbitration.

expeditious just to have an arbitration at once, applied for review under section 16 of the First Schedule of the Act of 1906, and asked that the compensation should be ended as at 8th September, the day on which he had de facto stopped payment. On 12th January 1926 the workman, tired doubtless of getting no payments and of no progress having been made in the Viscount Dunedin.-Underlying this case is application under subsection (c) of section 14, the same general question as to the effect of charged on his registered decree to enforce paysection 14 of the Workmen's Compensation Act, ment of all arrears since 8th September 1925. 1923, as was raised in the case your Lordships | On 15th January the employer raised in the have just disposed of (Ocean Coal Co. v. Davies). | Sheriff Court a suspension of that charge, and Had I been giving my opinion in this case it is that suit that is now before your Lordships. without that case having been decided, I should have been bound to come to the same conclusion as I there expressed and then have proceeded to see how it affected the present case; but if I were now to take that course it would be of no service to anyone. I think, therefore, I ought to take the result of your Lordships' judgment in the last case as settling the general question in this case, because in that way alone may I be of some assistance, inasmuch as the present case is somewhat complicated by Scotch procedure with which I am naturally familiar.

In the present case the workman had obtained an award against the employers ordaining them to pay 16s. 4d. a week during total incapacity. This award had been recorded on 12th May 1913 in the Special Register in the Sheriff Court of the Lothians and Peebles under the Workmen's Compensation Act, 1906. Upon such a registered award the workman could, if the employer ceased to pay, execute a charge, and on such a charge execution by way of poinding and arrestment could follow.

On 8th September 1925 the employer de facto stopped the compensation, and being at that time minded to take advantage of subsection (c) of section 14-I do not quote any of the sections as they were all quoted in the last case-they served a notice on the workman accompanied by a medical certificate saying compensation will be stopped in ten days from that date. The workman replied on 24th September by a counter notice and medical certificate, and on or about the 27th application was made for a medical referee. But the sheriff-clerk, on considering the application, thought that the case was one of exceptional difficulty and refused the reference, saying that the question must be settled by arbitration. This he was entitled to do, subject to appeal to the Sheriff in respect of the terms of section 12 of the Act of 1923.

Now, as to what was done. The SheriffSubstitute, on seeing the writ, as a condition of doing anything, ordered consignation of the sum sued for and £20 for expenses. The consignation was made that day. That having been done, the Sheriff-Substitute granted a sist, i.e. stopped all further process of execution for the moment and granted warrant to cite the defender (the workman) with an order to lodge defences within fourteen days. Defences were duly lodged, and on 2nd March the SheriffSubstitute sustained the first plea of the defenders-i.e. a plea of irrelevancy-recalled the sist, and dismissed the action. Appeal was taken to the Sheriff-Principal, who, on 24th March, adhered to the interlocutor of the SheriffSubstitute. Appeal was taken to the First Division of the Court of Session, who, on 29th June, again adhered. Both the Sheriff-Substitute and the Sheriff, and thereafter the learned judges of the First Division, proceeded on the ground that section 14 of the Act of 1923 had altered the law as it stood under Wishart's case. They also held that the consignation made was not a consignation in terms of subsection (c) of section 14. In that latter determination they were clearly right. The consignation made was the common law consignation which any judge may require as the price of going on with the suspension, and it was impossible to turn it into the special consignation authorised by subsection (c) of section 14, the proceedings under that subsection having been for the time abandoned.

Now I think it is abundantly clear that the whole foundation of the judgments rests on the view of section 14 which your Lordships have rejected in the case just decided. I am therefore of opinion that the interlocutors fall to be reversed, and that the case be remitted to the Court of Session to grant again a sist of execution in order to await the result of the

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