Latham v.

1ST DIV. essence of the statutory provisions-considerations such as these seem to me to be appropriate in this Corpora case, and I think that they are adverse to the case tion of which the pursuers have endeavoured to make. City of

The recorded decisions afford no direct guidance Glasgow. on the particular question now under consideration.

May 25, 1921.

Nevertheless in a general way they are helpful.

In the words of Lord Campbell in the case of the Liverpool Bank v. Turner (1861, L.J. Ch. 379 at p. 380): "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute." In the later case of Howard v. Bodington (1877, 2 P.D. 211) Lord Penzance, after citing the foregoing passage from the opinion of Lord Campbell, added: "I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subjectmatter, consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case, in that aspect, decide whether the matter is called imperative or only directory."

In arriving at the opinion which I have expressed as to the meaning of the statutory provision and the effect which ought to be given to it, I have endeavoured to construe it in the light of such general considerations as those referred to by Lord Campbell and

Lord Penzance.

If I am right in construing as I have done the statutory provision founded on by the pursuers, their case must fail. Even on the contrary assumption, however, I think that the pursuers cannot succeed.

I am now assuming that the statute makes the demand by an elector in the area a necessary and absolute condition of the validity of a requisition, although the requisition is otherwise conform to the statutory requirements in all respects.

The question remains whether, on that assumption in the circumstances averred by the pursuers, and in the events that have happened, an irregularity of the kind alleged in this case is fatal to the whole proceedings. In my opinion the answer must be in the negative. I disregard on this question, as inapplicable in the present case, the salutary provisions of section 13 of the Ballot Act of 1872 re

garding non-compliance with rules and other mistakes garding non-compliance with rules and other mistakes in cases in which an election has been conducted in accordance with the principles of the Act and the non-compliance or mistake has not affected the

result.

The principles of the common law, however, which are applicable in this case, seem to me to exclude the drastic remedies which the pursuers are seeking. I refer in particular to the statement of the law in the judgment of the Court as delivered by Lord Coleridge Č.J. in Woodward v. Sarsons (1875, 10 C.P. 733 at p. 743).

In the present case, so far as appears from the averments of the pursuers, the statutory conditions and procedure were substantially fulfilled and carried out; the technical irregularity founded on by the pursuers did not affect and could not have affected either the requisition for the poll or the result of the poll. The desire of the statutory percentage of the electors to have a poll was freely expressed and the poll was duly taken. These facts are not even put in issue on the pursuers' pleadings.

The Lord President (Clyde).-My opinion is in substantial agreement with that of the Lord Ordinary, except as to one minor point. The Lord Ordinary expresses the view that, even if the issue of the requisite forms to non-electors were illegal, such an irregularity would not affect the validity of the proceedings which follow, on the ground that it would not disturb the numbers of the poll. I do not think that the question whether such an irregularity— assuming that it is one-would or would not disturb the numbers of the poll is relevant to the point at issue, which is whether that which is a condition precedent to the statutory poll, namely, a valid requisition, did actually precede it. On the merits of the case I need say but little. It is clear that, in terms of section 5, the requisition papers must be in a particular form, must emanate from the clerk to the local authority, and must be issued to any elector on demand; but I am unable to read that provision as meaning that issue of a requisition paper to a person who is not an elector is forbidden. The Act contains careful precautions against the abuse of requisition papers by non-electors being induced to put their names to them; but, even in the case of a genuine elector, there is nothing in the Act to prevent the issue of a plurality of requisition forms to him, and once they reach his hands there is nothing that I can see to prevent him, if he is so minded, committing one or more of such papers to the agent of some organisation which promotes a no - licence policy in the area. I am far from thinking that a wholesale devolution by the town-clerk to persons other than his own proper deputes of the function of issuing requisition papers would be consistent with the Act. I do not, however, read the averments of the pursuers as amounting to an allegation of that kind. What is said is that the town-clerk referred some of those who asked him for requisition forms to a non-elector,

Questions having arisen as to the construction of this fifth purpose of the trust disposition and settlement, a special case was presented for the opinion and judgment of the First Division by the acting trustees (First Parties), Dame Hilda Maud Macdonald Moreton or Macdonald Lockhart, the widow (Second Party), and Charles Angus Macdonald, second son of John Ronald Moreton Macdonald, mentioned in the said fifth purpose of the deed (Third Party).

The special case set forth, inter alia:

3. The estate of the said Sir Simon Macdonald Lockhart at his death consisted of (a) moveable property of the approximate value, after deduction of debts and Government duties, of £51,252, and (b) heritable property, all of which formed the subject of the destination aftermentioned, consisting of the estates of Lee, Cartland, Carnwath, and others in the county of Lanark, and Dryden (or Roslin) and others in the county of Midlothian, of an estimated value, after deduction of heritable debts charged thereon and Government duties, of £168,043. The debts affecting the heritable property deducted in arriving at the above estimated value amount to £110,241, 18s. 9d. 4. The first parties have duly completed a title in their names as trustees to the said heritable property. 5. Under the said trust disposition and settlement the testator (first) directed payment of his debts other than those heritably accrued on his estates, and funeral and trust expenses; (second) directed payment of such legacies as he might leave; and (third) directed payment of an annuity of £200 to a niece. He further made certain provisions for the disposal of his heritable and moveable property (fourth) in the event of his leaving issue, and (fifth) in the event of his leaving no issue, or of such issue dying without attaining majority and without lawful issue. The testator left no issue, so that the provisions made regarding the disposal of the heritable property in the event of his leaving issue did not come into operation.

The Questions of Law for the opinion and judgment of the Court were the following: "1. Is the second party entitled under the testator's trust disposition and settlement to an absolute fee of the said heritable estate? or "2. Is the right of the second party limited, under the direction contained in the testator's trust disposition and settlement, to a liferent together with a fiduciary fee for the heirs called under the destination?"

Argued for the Second Party: The case fell under the rule of Frog's Creditors v. His Children 1735, M. 4262, 3 Ross's L.C. (Land Rights) 602). That case had now been followed for nearly two hundred years, and it must be assumed that a testator who used the form of art employed in Frog's Creditors knew that his deed could be capable of only one construction. The subsequent case of Newlands v. His Creditors (1794, M. 4289, 3 Ross's L.C. 634) decided only that if words were used restrictive of the liferent (e.g. "allenarly ") the rule of Frog's Creditors did not apply. In the present case no such words were used. If other parts of the deed were to be appealed to in order to explain the initial words of gift, they must shew beyond all doubt that the testator did not intend the technical words of style used by him to be construed in their ordinary technical meaning. It was impossible for the third party here so to appeal to the rest of the deed, which was all capable of construction in accordance with everyday

technical

usage.

Counsel referred to the follow

ing additional authorities : Dewar, etc. V. McKinnon, 1825, 1 W. & S. 161, 3 Ross's L.C. 611; Macintosh v. Gordon, 1845, 4 Bell 105, 3 Ross's L.C. 617, per Lord Campbell at p. 619; [the Lord President cited Mure v. Mure, 1786, M. 4288, as explaining Lord Campbell's dictum as to the rule in moveables;] Robertson v. The Duke of Athole, 1806, M. App. "Fiar, Absolute, Limited," No. 2; Hutton's Trs. v. Hutton, 1847, 9 D. 639; Ralston v. Hamilton, 1862, 4 Macq. 397, per Lord Westbury L.C. at p. 418; M'Clymont's Exrs. v. Osborne, 1895, 22 R. 411; Houlditch v. Spalding, 1847, 3 Ross's L.C. 667; Sandys v. Bain's Trs., 1897, 25 R. 261, per Lord Kinnear at pp. 265 et seq.; Brash's Trs. v. Phillipson, 1916 S.C. 271; Gifford's Trs. v. Gifford, 1903, 5 F. 723 (where Frog's Creditors was distinguished in respect of the different terms of the bequest), per Lord M'Laren at p. 731; Maule, 1876, 3 R. 831, and Livingstone v. Waddell's Trs., 1899, 1 F. 831 (the only cases in which "equivalents" had been found for the word "allenarly," and cases which were both distinguishable in respect of the very different terms of the deeds).

Argued for the Third Party: The case of Frog's Creditors (cit.) did not apply. It had hitherto been assumed that the decision in that case proceeded upon the ground that a fee could not be in pendente. That assumption was wrong; the decision embodied the Court's view of the intention of the testator (Erskine, II. i. 4; Duff's Feudal Conveyancing, p. 393; Bell's Lectures on Conveyancing, pp. 841 and 842; Menzies's Lectures, p. 665). That consideration must rule in every case, and in the present case there were abundant indications throughout the deed that the testator intended to restrict his widow to a mere liferent of his Scottish estates.

moveables and heirloom jewelry, and in those

two contexts the word "liferent" was construed easily in its natural meaning. Why not also in the third context? It was not necessary to find an "equivalent" in the deed for the word "allenarly" if the deed made the testator's intention clear, as in the present case (e.g. by repeated reference to the "institute" and the widow in the same clause, so that obviously these were not in the testator's view one and the same person). The best judicial authorities for that proposition were Livingstone v. Waddell's Trs., 1899, 1 F. 831, per the Lord Ordinary (Low) at p. 838, and Lord M'Laren at p. 846; Studd v. Cook, 1883, 10 R. (H.L.) 53, per Lord Watson at p. 61; Gifford's Trs. (cit.), per Lord M'Laren; Cumstie v. Cumstie's Trs., 1876, 3 R. 921; Douglas v. Sharpe, 1811, Hume 173 Further, the class of cases in which the rule of Frog's Creditors applied was a very narrow one. The rule applied only to destinations to a parent in liferent and his issue nascituris in fee (Ramsay v. Beveridge, 1854, 16 D. 764, per Lord JusticeClerk Hope at p. 769), and it did not apply to gifts by married persons to one another in liferent and their children nascituris in fee (but see Forrester v. Forrester's Trs., 1835, 1 S. & M. 441, per Lord Brougham at p. 460), and especially not to such gifts in mortis causa deeds (Bell's Lectures, p. 842; Fraser v. Brown, 1707, M. 4259; Mackellar v. Marquis, 1840, 3 D. 172, 3 Ross's L.C. (Land Rights) 741, per Lord Fullerton at p. 749). There was no case in the books in which the rule had been applied to a testator's widow.

Avizandum, 9th June 1921.

On 18th June 1921 the Court answered the first question of law in the negative, and the second in the affirmative.

The opinion of the Court was delivered by

Lord Cullen.-Sir Simon Macdonald Lockhart of Lee died in March 1919 without leaving issue, and survived by his wife, who is the second party to the present special case. He left a mortis causa general trust disposition and settlement whereby he conveyed to trustees his whole estates, heritable and moveable, for the purposes therein contained. Apart from certain minor bequests, the main scheme of the deed, applicable to the case of the testator leaving no issue, may be described, generally, as consisting of a settlement of (1) the testator's whole lands and heritages in Scotland-which I shall hereafter refer to as "the landed estates "-and (2) the whole residue of his estates, heritable and moveable, in favour of the second party, if she survived him, in liferent, and of the heirs male of her body, whom failing a series of heirs substitute, in fee. There is a similar destination of the testator's jewelry, which he desires

donald.

should be preserved and handed down as heir- 1st Div. looms along the same line of succession as his Lockhart said landed estates. The said provisions in v. Macfavour of the second party are described by the testator as provisions made by him for her during her widowhood, and, if accepted by her, are to supersede certain other provisions made antenuptially.

The question now raised relates to the nature of the interest in the landed estates intended to be given by the testator to the second party, who maintains that, although ex figura verborum a liferent, it must be held, on a due construction of the settlement, to amount to a full fee.

No question admittedly arises as to the limited character of the liferent right given to the second party in the case of the residue, as in that of the heirlooms.

In the case of the landed estates the trustees are directed to denude of them by a conveyance. The direction runs as follows: [His Lordship quoted from the deed, cit. supra.] There follow certain other clauses, some of which I shall advert to hereafter.

It is common ground that the time has now come in a due course or administration for a disposition of the landed estates being executed by the trustees.

As the destination above quoted is primarily in favour of the second party in liferent and the heirs male of her body in fee, the second party maintains, on the authority of the rule established by the case of Frog's Creditors v. His Children (1735, M. 4262, 3 Ross's L.C. 602), that the interest in the landed estates given to her is one of full fee, and that upon a disposition being granted in these terms without qualification she will be vested with such a fee, the heirs male of her body as well as the other heirs substitute called after them being called as substitutes to her as the institute in fee.

The case of Frog related to a disposition to one Robert Frog in liferent and to the heirs of his body in fee, whom failing to other parties in liferent and fee respectively. It was held that the disposition gave the full fee to Robert Frog, named liferenter. The grounds of the decision would appear to have been that as the disposition implied an immediate divestiture of the disponer, and as the fee could not be supposed to be in pendente, it must be presumed that the maker of the deed intended to give the fee to Robert Frog. Otherwise where was the fee? At the period of this decision, the conception of a fiduciary fee in such a parent liferenter, avoiding pendency of the fee, had not been introduced. There followed, about sixty years later, the case of Newlands (1794, M. 4289, 3 Ross's L.C. 634), where the liferent given by the disposition was in terms a liferent "allenarly." It was not reasonably possible to attribute to the maker of the deed in question an intention to give the fee to the disponee in liferent

June 18,

1921.

donald. June 18,

1921.

1ST DIV. allenarly. The difficulty about the fee not being Lockhart in pendente was met by conceiving the liferenting v. Mac- parent as intended to be given a fiduciary fee to be held by him for behoof of the heirs of his body. It seems obvious enough that this conception of a fiduciary fee might equally well have solved the case of Frog in favour of the children, seeing that the word "allenarly" only indicated that the maker of the deed meant to give a liferent when he said so; and that this reasonable conclusion might have been derived in Frog's case from the disponer giving, in terms, a liferent to Frog and the fee to others. But the rule laid down in Frog, within its limits, has held good and is now too firmly established to be displaced, unless by legislation.

But the rule of the case of Newlands is of equal validity. And while the decision in that case turned on the liferent being styled a liferent "allenarly," it has long been well recognised that there is nothing magical or inflexibly technical about the word "allenarly," and that the use of it is not in any way necessary as a solemnity to admit of the conception of a fiduciary fee only, as opposed to a full fee, being given to the liferenting parent. It is true that in the earlier period, following on the case of Newlands, there was a tendency to confine the application of its principle within too severe and narrow limits. But latterly a wider conception has prevailed. And this, I think, logically and necessarily, and in accordance with sound sense. As I have ventured to observe, the destination in Frog to Robert Frog "in liferent" was quite as susceptible of the view that a fiduciary fee only was being conveyed to the liferenter as was the destination "in liferent allenarly" in the case of Newlands. All that was necessary was to hold, very reasonably, that the disponer intended a liferent when he, in terms, gave one. But the idea of a fiduciary fee had not then been introduced. The case of Newlands, starting from the artificial rule of Frog, as an established doctrine, laid down this other rule that only a fiduciary fee was to be held as intended where the disponer not merely said "in liferent," but also expressed his intention, in some independent mode, that he really meant a liferent and not a full fee. For this was all that was done by the use of the word "allenarly." Apart from the unfortunate rule of Frog, the word "liferent" and the words "liferent allenarly " designate the same species of interest. It would, accordingly, be against reason to exclude an application of the principle of Newlands in any case where the deed under construction, while containing, like the disposition in Frog, a destination to a parent in liferent and his issue nascituris in fee, also contains, independently, sufficient evidence of intention on the part of the granter that the liferent to the parent is to be a liferent and not a full fee, as did the disposition in Newlands by the particular method of adjecting the word

"allenarly." For this there is no lack of authority. Thus in the case of Studd v. Cook (1883, 10 R. (H.L.) 53) Lord Watson said: "The rule established in Frog's Creditors v. His Children, and the series of decisions by which that case has been followed, is not an inflexible rule, but must yield to reasonable presumption that the maker of the deed intended otherwise." Again, in Gifford's Trs. v. Gifford (1903, 5 F. 723), Lord M'Laren said: : "By the general consent of judges and lawyers, the rule of Frog's case has been recognised to be a purely arbitrary rule, incapable of extension, and not to be followed where the context shews that the word liferent is used in its ordinary signification." The same learned judge, in the case of Livingstone v. Waddell's Trs. (1899, 1 F. 831), said: "It results from the case of Newlands, and a long train of subsequent decisions, that any collateral expressions in the deed shewing an intention to limit the right of the nominal fiar to an usufructuary interest, or to set up a trust in favour of the children, are sufficient to exclude the construction of the word 'liferent' in the sense of fee." I do not think it necessary to quote further judicial utterances on this topic. Senior counsel for the second party hardly disputed the principle embodied in those I have ventured to quote, although he preferred to express it by saying that the context of the particular deed under construction must be such as to carry a reasonable conviction to the mind that a liferent and not a fee is intended, a way of stating the principle which may be readily accepted.

The argument in this case, accordingly, takes one to a consideration of the deed here under construction in order to see whether the context of the prescribed destination does or does not yield a "reasonable presumption," or carry to the mind a reasonable conviction, that the maker of it intended to confer on the second party a liferent only (with a fiduciary fee) and not a full fee of the landed estates. And it may be observed that we have here to construe not a feudal conveyance but a will, and have, therefore, all the more freedom in endeavouring to solve what is a quæstio voluntatis.

The first feature of the will which one observes is the similarity of the terms in the different parts of the scheme of bequest applicable respectively to the landed estates, to the residue, and to the heirlooms. In each case the subject of bequest is given, in terms, to the second party in liferent, and in fee or property to the person called to the fee of the landed estates on her death. And in the case of the residue, as in that of the heirlooms, it is not in dispute that the right given to the second party is one of liferent only. This, the second party argues, does not go very far, inasmuch as the testator, in the case of the landed estates, may quite well have intended to make a difference by giving her a full fee, and may only have preferred,