Ord v Ord
| Jurisdiction | Scotland |
| Judgment Date | 18 November 1926 |
| Date | 18 November 1926 |
| Docket Number | No. 11. |
| Court | Court of Session |
Lord Ormidale, Lord Anderson, Lord Justice-Clerk (Alness).
SuccessionConstruction of testamentary writingsWords importing gift of heritageMoneyAll the money that I am possessed of followed by enumeration of estate including heritageWhether money habile to infer bequest of heritageWords.
By a holograph will a testator left and bequeathed to his wife all the money that I am possessed of after paying deathbed and funeral expences. Then followed a list of the testator's investments, with a money value opposite each, in the middle of which appeared this item:On Falside property 6000. The property in question was a farm, purchased by the testator and his brother for 12,000, of which he owned a one-half pro indiviso share.
Held that it was to be inferred that it was the testator's intention to include under the term money the property of Falside, and accordingly that the will operated as an effectual bequest in favour of the wife of that portion of the testator's heritable estate.
James Wilson Ord, who resided at Browndeanlaws, Jedburgh, died on 31st March 1926. He was survived by his wife, Mrs Elizabeth Ord, but left no issue.
He left a holograph will of his own composition, dated 23rd November 1923, which was in the following terms:I, James Wilson Ord hereby make my will and leave and bequeath to my wife Elizabeth Ord all the money that I am possessed of after paying deathbed and funeral expences.
| Bonds | |
| R. Bruce Trustees | 1750 |
| R. Bruce Trustees | 500 |
| A. Douglas | 2500 |
| Major J. Paton | 2500 |
| D. M. Teacher | 2000 |
| J. R. Scott | 2000 |
| On Falside property | 6000 |
| In War Loan | 3071 |
| In B. L. Bank | 8510 |
| In Royal Bank | 1362 |
| R. Donkin Ltd. Shares | 30 |
| Half of Snitter money |
All my household furniture and motor car. Also the half of Brundeanlaws sheep, cattle and horses and impliments. Also the half of Falside sheep, cattle, horses and impliments.
The assets enumerated in the will comprised practically the whole estate of the testator as at the date of his death, and were of practically the same value as the estate left by him at his death. The entry in the will On Falside property referred to the farm of Falside, of which the testator owned a one-half pro indiviso share, the property having been purchased by the testator and his only brother, Thomas Ord, at the price of 12,000.
Questions having arisen as to the meaning and effect of the will, a special case was presented for the opinion and judgment of the Court, to which the testator's widow was the first party; his brother Thomas Ord, as his heir-at-law, was the second party; and his next of kin were the third parties.
The only question with which this report is concerned related to the testator's interest in the farm of Falside. On that point the first party maintained that, by his will, the testator bequeathed to her his whole moveable estate and also the one-half pro indiviso share of the farm. The second party maintained that the holograph will contained no valid and effectual bequest of the testator's heritable property in Scotland, and accordingly that such heritable property fell to him as heir-at-law.
The first question of law was:Did the testator validly bequeath to the first party the one-half pro indiviso share of the farm of Falside? The second and third questions had reference to the testator's moveable estate.
The case was heard before the Second Division (without Lord Hunter) on 17th and 18th November 1926.
Argued for the first party;The intention of the testator, as expressed in his will, was to bequeath to his wife the whole estate, heritable and moveable, of which he died possessed. The word money, when the context permitted, was capable of including a testator's whole moveable estate.1 Its interpretation in a Scottish
will depended not, as in England,1 upon its technical signification, but upon what the testator intended the expression to include.2 Although money might not be an expression strictly appropriate to a bequest of heritage, there was no reason why the Court should refuse to apply the above principle of construction in the present circumstances. The testator was entitled, provided he made his meaning plain, to put whatever gloss he chose upon the word money.3 The use of the word all in the dispositive clause implied an intention to deal with the whole estate, and money in that clause was really equivalent to estate. The subsequent enumeration of items of the estate in conjunction with the sums opposite each strongly supported the contention that what the testator had in view throughout the deed was not money but the various portions of the estate, identified by their money values. That was sufficient, if his intention was to bequeath the universitas of his estate, to account for the interposition of the item On Falside property between portions of his estate which were clearly moveable. No special words of style were necessary to convey heritage, provided the intention to do so was clear.4 In a deed like the present, which purported to be a universal settlement, the presumption was against intestacy.
Argued for the second and third parties;The language of this deed did not import a gift of heritage. The word money included only moveable estate.5 The expression, standing by itself, had never been construed to cover heritage.6 Although technical legal terms were no longer necessary for the conveyance of heritage, the question as to the intention to convey heritage still remained one of construction of the terms of the particular deed.7 A testator might, no doubt, put his own gloss upon any word he used, but a very clear indication of intention would be required before money could be read as covering more than merely moveable estate. Here there was no such clear indication of intention as would warrant the Court in holding that the testator was making a gift to the first party...
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