References: [1860] EngR 525, (1860) 8 HLC 183, (1860) 11 ER 397, (1860) 8 HL Cas 183
Links: Commonlii
Coram: Lord Chelmsford
Lord Chelmsford said: ‘Had it occurred to her mind that a highly improbable state of facts might arise, either of their both perishing together or of its being impossible to ascertain which was the survivor, no doubt she would have used apt words to embrace such an extraordinary contingency. Can the language which she has employed be made to include such an intention? If it cannot, then we are not at liberty to go out of the will to bring into it something which is not to be found there. The testatrix says, I give to my husband certain property, and in case he should die in my lifetime, then to the appellant [W. W.]. She clearly intended that the appellant should not have her property if her husband survived her, for on that event it was to go to him. The appellant can only be entitled in case the husband fails to take by survivorship. If the husband survived, the appellant’s bequest never came into existence. But he cannot show that the husband did not survive, and therefore he fails altogether in establishing the foundation upon which alone his right can be built.’
This case is cited by:
- Cited – Drummond’s Judicial Factor -v- LA SCS (Bailii, [1944] ScotCS CSIH_1)
There is no presumption as to survivorship in a common calamity . .