Scottish Court of Session Decisions

Robert Rankine Holmes of Barloch, writer in Glasgow, died in 1859, leaving a testament dated 16th May 1859, by which he bequeathed, on the expiry of certain liferents, the sum of £500 to the Magistrates and Town Council of Irvine, “to be applied by them as they shall deem proper towards the maintenance of aged poor persons, natives of Irvine, not receiving parochial aid, and unable adequately to support themselves.”

The legacy became payable in 1886, and was paid over to the Magistrates in terms of the testator's bequest.

A question then arose as to the meaning of the expression “natives of Irvine” occurring in the will.

Page: 297↓

A special case was accordingly presented by the Magistrates of Irvine, as parties of the first part; and James Muir, an inhabitant of the extended or Parliamentary burgh of Irvine, as the party of the second part.

The royal burgh of Irvine, as defined by its old Crown charters, was, with the exception of that part of it known as the harbour of Irvine, which lay within the parish of Dundonald, situated wholly within the parish of Irvine, and on the east bank of the river Irvine. The harbour of Irvine contained a number of dwelling-houses. The jurisdiction exercised by the first parties at the date of the testator's death, and until the passing of Irvine Burgh Act 1881, was limited to the royal burgh of Irvine as defined by its charters.

Adjoining the royal burgh, but separated from it by the river Irvine, was the large suburb known as Halfway or Fullarton. This suburb lay between the burgh and the harbour; it was not within the royal burgh at the date of the testator's death, and it was wholly situated within the parish of Dundonald. Though the first parties had, prior to the testator's death, acquired by royal grant and by purchase a large portion of the lands on which the houses in the Halfway or Fullarton district were built, and of which lands they were the feudal superiors, they did not at or prior to said date exercise any jurisdiction in this district. The Halfway or Fullarton district was connected with the royal burgh of Irvine by a four-arch carriage bridge, which was built in 1746, and widened and improved in 1837.

By the Reform Act of 1832 the Parliamentary burgh of Irvine was defined so as to include the old royal burgh of Irvine and the Halfway or Fullarton district above mentioned. This Act in no way extended the jurisdiction of the Magistrates of Irvine.

By the Irvine Burgh Act 1881 the boundaries of the burgh were further extended so as to include territory beyond the limits of the Parliamentary burgh, both within the parish of Irvine and within the parish of Dundonald, and by section 24 of this Act the jurisdiction of the Magistrates formerly exercised over the old royal burgh was to be exercised over the extended burgh.

The testator was born in or about the year 1807 in the old royal burgh of Irvine, in which he was also brought up.

The first parties maintained that “Irvine” must be held to mean the old royal burgh of Irvine as it existed at the date of the testator's death, or at most the parish of Irvine, and that the persons entitled to the benefits of the bequest must be natives of the old royal burgh as defined at that date, or at most of the parish of Irvine. The second party, assuming that the date at which the terms of the testament fell to be construed was the date of the testator's death, maintained that “Irvine” must be held to mean the Parliamentary burgh of Irvine as defined by the Reform Act of 1832. The second party further maintained alternatively, if it was held that the terms of the testament fell to be construed at the date of the death of the last survivor of the testator's sisters, when the bequest became operative, that “natives of Irvine” included natives of the burgh of Irvine as extended and defined by the Irvine Burgh Act 1881.

The following questions were submitted for the opinion of the Court—“I. Is the term ‘natives of Irvine’ to be construed as at the date of the testator's death, or as at the date of the death of the last survivor of the testator's sisters, when the bequest became operative? II. Must the persons entitled to the benefits of the bequest falling to be administered by the first parties be natives of the old royal burgh of Irvine, or at most of the parish of Irvine? III. Are the terms of the bequest to be construed so as to include either (1) natives of the Parliamentary burgh of Irvine as defined by the Act 2 and 3 Will. IV. cap. 65, or (2) natives of the burgh of Irvine as defined by the Irvine Burgh Act 1881?”

Argued for the second party—The gift should not be limited to the inhabitants of the royal burgh only, but should extend to Fullarton also. The word “Irvine” was to be interpreted at the date of the testator's death. The jurisdiction of the Magistrates did not affect the present question, which related solely to the administration of a charity. Their appointment as administrators was not qua magistrates, but as a continuing body. The burgh as known to the testator, and as existing at the date of his death, was what the testator meant— Bogie's Trustees v. Swanston, February 5, 1878, 5 R. 634; Hunter v. Northern Marine Insurance Company, March 4, 1887, 14 R. 544.

Argued for the first parties—The deed interpreted itself in the present case, and any ambiguity that existed arose from going outside its provisions. The mention of the Magistrates of Irvine in the same sentence with the bequest indicated that the testator intended to restrict the beneficiaries to persons under the jurisdiction of the Magistrates. The testator was born and brought up in the old royal burgh, and he naturally meant to benefit those only who were within its limits.

At advising—