running of the long positive prescription in favour of the Crown, and of the long negative prescription against the pursuer. That the pursuer's author and predecessor, Mr James Cheape, took from the Crown, in 1798, the tack, No. 19 of process, of the teinds in question, and paid therefor the stipulated duty from that year to 1851, a period of upwards of fifty years, is not only not disputed, but is matter of express admission in the joint-minute by the parties, No. 28 of process. And the tack so taken and acted on by the pursuer and his authors and predecessors expressly bears that the teinds in question formerly belonged to the Archbishops of St Andrews, as part of their patrimony, and are now in our (the Crown's) hands and in our gift, in virtue of the Acts of Parliament abolishing Episcopacy in Scotland.' That possession, therefore, was held by the Crown for greatly more than the prescriptive period, and that there was no possession by the pursuer or his authors and predecessors, except as tenants of the Crown, for the same period, is beyond all question. It was said, no doubt, for the pursuer, that he and his predecessors possessed in virtue of charters they had obtained from the Crown, and that, in the face of these charters, and in respect of the divestiture thereby effected, the Crown could not plead prescriptive possession as against the pursuer, and, indeed had not a habile title to which their possession could be ascribed. But the Lord Ordinary could not give effect to this reasoning, which he considers to be plainly fallacious. There is no evidence whatever of possession by the pursuer and his predecessors during the prescriptive period referred to, in virtue of charters from the Crown, for any Crown charters which have been granted subsequently to the commencement of the prescriptive period were merely charters by progress. But it is a well-established principle of law that superiors cannot be prejudiced or their rights affected by the granting of charters by progress, Forbes, 28th November 1673, M. 6517; and Aytoun v. Magistrates of Kirkcaldy, 4th June 1833, 11 Sh., p. 676. And it is an equally well-established principle of law that a superiority title jure coronæ, even where there is no other, is of itself sufficient for the operation of the positive prescriptionMagistrates of Peebles v. Officers of State, 25th November 1800, Hume's Decisions, p. 457; and so in regard to the title of a subject superior-Robertson v. Duke of Atholl, 16th February 1808, Hume's Decisions, p. 463.

"It only remains to be noticed that the judgment of Lord Benholme in an action similar to the present, which depended before his Lordship a few years ago, at the instance of Mr Lindsay, who, it has been mentioned, has right to other lands in the parish of Leuchars, acquired as the pursuer's were from the York Buildings Company, was very much founded on by the pursuer at the debate. It appears that Lord Benholme decided in that action a similar question to the present in favour of Mr Lindsay, but it does not appear that the plea of res judicata, although stated for the Crown in the record in that case, was pressed in argument as here, and most certainly no mention is made of such a plea by Lord Benholme either in his interlocutor or relative note. Besides, in that case, although there was, as here, a tack obtained from the Crown by Mr Lindsay, and payment by him of the tack-duty for the prescriptive period, the tack in that case-differing most essentially from the tack in the present case-contained a clause

'saving and reserving to the said Robert Lindsay and his foresaids all heritable rights to the said teinds, if any be, which shall hereafter be discovered.' It was with reference to, and in respect of this saving clause that Lord Benholme disregarded the pleas of the Crown founded on prescription. But as the pursuer has no such saving clause in his tack to found on, Lord Benholme's ratio decidendi has no application to the present case." Mr Cheape reclaimed.

FRASER and ADAM, for him, argued, inter alia, that no question affecting heritable rights could be so finally decided in a possessory action, such as an action of spuilzie, so as to become res judicata; and relied upon the following authorities, Leven v. Cartwright, 23 D. 1061; and Gray v. M'Hardie, 24 D. 1047; Digest B. 44, L. 14, 23; Stair, App. 797, More's Edition.

The SOLICITOR-GENERAL and IVORY in answer. At advising

LORD BENHOLME, after giving the narrative above quoted, proceeded:-The effect of this important reservation in the tack of 1798 was plainly this to render the previous judgment a mere conditional decision, liable to be opened up by a discovery of the titles hitherto beyond the reach of the defenders. The judgment took no higher effect than attaches to a interlocutor in a multiplepoinding, preferring one of the claimants for aught yet seen.

It only remains to observe that the production by Lindsay of Ballcarras of the disposition of the Barons of Exchequer in the locality of 1794, with its clause of teinds in favour of the company-and his subsequent production of the conveyance to Lord Carnegie, and the several retours of the Southesk family, by which the Baron's disposition was fully and finally justified-put an end to the legal effect of the supposed res judicata of 1776. The condition upon which the defeasance of that judgment depended was thus purified; and the rights of the York Buildings Company in the teinds in question finally ascertained.

Even if the alleged res judicata had been pronounced in a proper action of declarator, and had not been made defeasible upon the discovery and production of emergent titles, I should have thought, in the peculiar circumstances of this case, it would have been reducible upon the general principles of the doctrine of res judicata. Mr Erskine (iv. 3, 3) observes "In the opinion of Stair, B. 4 t. 1, sec. 44, and of Mackenzie, the Session may also reduce their own decrees upon the emergence of any new fact or voucher in writing not pleaded formerly by the party, if it shall appear that it was not known to him before decree, or that he did not omit it willfully, with a view to protract the cause. Nor is this opinion in any degree inconsistent with the above quoted act of regulations 1672; for a defence of which a party is ignorant, and which therefore it is not in his power to plead, cannot be called competent and omitted."

Lord Stair's work contains several passages which justify Mr Erskine's statement of his Lordship's opinion. In book 4, t. 1, sec. 44, he observes "The Lords suspend sometimes, and more frequently reduce their own decreets, upon compearance, by proponing new matter of facts, either emergent since the decreet, or truly come to the proponer's knowledge thereafter, although it was competent to have been proponed in the decreet; if evidence be given that it was not dolosi omitted, to protract the plea."

And in the Appendix to his work, (App. 8, 2), in treating of suspensions, he observes: "When the charger answers, that res est judicata, the same point being proponed in the principal cause and repelled, or in another decreet produced; against this it may be objected, that the reason of suspension is upon the inatter emergent or new come to knowledge after the decreet, which therefore cannot be excluded thereby."

The case of Graham v. Maxwell, 20th May 1814 (Brown's Synopsis, p. 1805), is reported under the following rubric, "To render the matter of a judgment a res judicata, so as to make this a valid plea, it is necessary not only that the subject and parties, but that the grounds of judgment or media concludendi, should be the

same."

Lord Elchies reports the case of the Creditors of Winram, 6 Jan. 1735, under this rubric-" Interlocutor founded upon an error in fact is not binding as a res judicata, but may be altered, and was altered after several years.' Lastly, Lord Kames, in his Elucidations, expresses the same doctrine in these words: "The other branch of unjust decrees is where they are founded upon an error in fact. All controversies that can be brought before a court of justice arise from facts; and if judgment be given upon an error in fact, it is set aside as not being a judgment upon the case in controversy." In the present case the decree in 1774 was founded upon an essential error in fact. The decreet itself embodies the erroneous statement that the teinds in question "did belong to the Archbishop of St Andrews, and now to the Crown as come in place of the Archbishop;" whereas the clause of exclusion in the title of the Archbishop demonstrated that the Crown, as coming in place of the Archbishop, had no right to these teinds.

Again, the discovery of the new titles of the defender, and their production in process, were sufficient of itself to render the res judicata ineffectual. On the pursuer's record in this case it is expressly averred, in article 8 of the condescendence, that at the time of the decree of 1774 "the origin and true state of the title to the teinds of the said lands was not known to the company, nor pleaded in the action of spuilzie above mentioned." To this the Officers of the Crown answer,-"Denied that the true state of the title was unknown at the time mentioned to the said company. Quoad ultra admitted."

But from what has been already said it is evident that the company and their creditors, or those acting for them, were altogether ignorant of these important documents, in regard both to the titles of the Crown and their own. And it is equally clear that their ignorance of both was caused at once by the reticence and by the misrepresentations of the Solicitor of Tithes. I am therefore of opinion that the decree of 1774 is not res judicata.

In the year 1782 the York Buildings Company's estate of Leuchars was brought to judicial sale. Part of it was purchased by the author of Lindsay of Balcarras; and another part by the predecessor of the present pursuer. Each of these lots contained a portion of the lands, the teinds of which were conveyed to Lord Carnegie in 1629. Feudal titles had been made up by the pursuer and his predecessor to his portion of the lands and teinds. These teinds form the subject of the present action.

In 1794 a decree of locality was pronounced,

which is alleged by the defenders to be res judicata in the present case.

This allegation seems to be unfounded. In that locality no interlocutor was pronounced touching the right of property of the teinds in question. The only matter decided was that Lindsay of Balcarras and Mr Cheape of Strathtyrum were not entitled to be exempted from allocation in regard to the teinds which they held by heritable right in competition with the other teinds of the parish held by the Crown as bishop's teinds.

In the course of this process Lindsay had produced the disposition of 1774, by the Barons of Exchequer. He quoted the special clause as to teinds, and he afterwards recovered and produced in process the disposition to Lord Carnegie of 1729, and the Southesk retours connected therewith. The Crown still made a show of defending their position; for they still kept in the background the fatal clause of exemption contained in the Crown's rights, derived from the Archbishop, corresponding with, and as it were fitting into, the clause of teinds in favour of Lord Carnegie. But now they were content to rest their plea in the matter of allocation on the same grounds on which they had been successful in the locality of 1711. They referred to the decree in that locality as embracing the very point which they had now to maintain. They even repeated the very argument which they had employed on the former occasion, and referred to the cases of Arngask and Lochnell as decisive of the question. I may here refer to one or two passages in the pleadings of the Crown which fully ascertain the argument upon which they relied, and upon which the Court proceeded. In a representation dated 3d July 1793 the following passage occurs:-"The representers do not mean at present to answer the objections for Mr Lindsay founded upon the supposition that the family of Southesk had an heritable right to the tithes of their lands in this parish prior to the forfeiture of that family, or the after title which the York Buildings Company are said to have acquired to these tithes from the Barons of Exchequer in the year 1744; it is sufficient here to observe that if such heritable right should be established, then, agreeable to the established law as fixed by repeated judgments of the Court, the tithes thus heritably acquired must be localled upon, in the first place, before the Archbishop's tithes now belonging to His Majesty, as come in his place, can be touched." And in the very last pleading given in for the Crown, being answers dated 9th August 1775 to a petition for Lindsay, the following passage occurs:-"The decisions in the cases of Arngask and Lochnell ought certainly to have the effect of settling the law, if the law is ever to be fixed by the judgments of this Court. Both these cases were argued by the ablest counsel at the Bar, and submitted to the consideration of the Court in every way by which information could be obtained; they were first stated to the Court on informations, and argued in presence, and next stated in petitions and answers; and the judgments were not made to rest upon particular facts and circumstances, but on the general abstract question, evidently formed on purpose to settle the law, and regulate the practice in time coming. The respondents therefore conclude that your Lordships will not be inclined, without very strong and pregnant reasons, to alter judgments pronounced with so much solemnity and deliberation, and sanctioned by uniform practice since the

period of these decisions. Mr Erskine (b. ii, t. 10, 53) considers these decisions as fixing the law in a competition betwixt tithes belonging to the Crown, as coming in place of the bishops, and tithes held by the heritors in virtue of an heritable right, Where part of the tithes of a parish belong to the bishop, and part to the landholders by virtue of heritable rights from lay titulars, the tithes belonging to the landholders must be exhausted before any part of the stipend can be localled upon the bishops' tithes; because bishops are considered a superior order of ministers; Minister of Arngask v. The Heritors, 13 July 1715; Officers of State v. Campbell of Lochnell, 7 March." It is very plain, therefore, that the decision in this locality is not res judicata in the present case.

The last special defence is a plea of positive prescription. The possession of the teinds alleged by the Crown is by certain tacks granted in 1797 to Lindsay of Balcarras and Cheape of Strathtyrum of their respective teinds. Which teinds above mentioned the tacks declare "pertained of before to the late Archbishops of the diocese of St Andrews, and are now fallen, and come into our hands, and at our gift and disposal, as come in place of the said Archbishop of the said diocese, by virtue of several Acts of Parliament abolishing Episcopacy."

This narrative, at the time it was framed, was plausible, and might remain so whilst the Archbishop's deed of mortification was withheld. But

in the late litigation at the instance of Lindsay of Balcarras, that disposition was produced and laid before the Court. Now, in reference to the Crown's plea of positive prescription, that disposition is absolutely exclusive of the teinds which the Crown seeks to prescribe.

In positive prescription a habile title is absolutely necessary-a title which not only quadrates with the nature and evidence of the possession, but is, in its own terms, capable of comprehending the subject possessed. A bounding charter has frequently been held to be no title for prescription beyond the bounds set forth. But this is, perhaps, the first case in which a party has attempted to plead prescription upon a title which absolutely and specially excludes him from the very subjects sought to be acquired.

At the last debate the advisers of the Crown seemed willing to abandon the title of the Crown as derived from the Archbishop; and the suggestion was made that perhaps the Crown might fall back upon the jus coronæ as a title of prescription.

This certainly appeared at the time to be, in regard to teinds, a novel idea, countenanced, so far as I know, by no authority.

The theory of our feudal constitution, no doubt, ascribes to the Sovereign a primary property in all lands within the kingdom, and in many rights connected with lands, the right of every subject being in these, secondary and derived.

Hence the jus coronæ vests in the Crown an unwritten and universal title to these subjects. The Crown is the supreme superior of all lands in Scotland; and, as the overlord or dominus directus, the Sovereign is enabled to plead on this unwritten title in questions of positive prescription. But no author, so far as 1 know, has said that the jus corona-the Sovereign's unwritten and universal title-applies to teinds; and, in my opinion, all principle, as well as theory, is against the idea.

"The King's right, jure corona," says Lord Stair, "is a sufficient title to lands either in supe

riority or property without seizin." The same author observes-"Teinds are acknowledged with us to be the patrimony of the kirk;" and his Lordship refers to the Act 1567, c. 10, as containing an authoritative statement of this doctrine. The jus coronæ probably applies to all the temporalities of the Church, but these his Lordship distinguishes from "the teinds, the spirituality as flowing from a spiritual ground of Divine right." The Church did not derive the teinds, their spiritual patrimony, from the Sovereign. That patrimony was founded, if not on Divine right, as some authors contend, at least upon the acknowledged constitutional law of most Christian countries.

Whatever teinds are possessed by the Crown are held by singular and secondary title-a title derived mediately or immediately from the Church.

The Crown acquires teinds by contract or demission, by the annihilation of ecclesiastical establishments under the maxim Quod nullis est, fit domini regis, or by the attainder of individual titulars, in which case the law of escheat operates in favour of the Sovereign. But in every case the Crown's right is limited, circumscribed, and qualified by the titles of its author.

It is perhaps unnecessary to pursue this speculation any farther, for, after all, even although such universal and unwritten title in the teinds could be ascribed to the Sovereign, it is difficult to see how that could be of any avail in the present case. It is difficult to understand how such title could be conjoined so as to form a prescriptive right with the possession constituted by tacks, which in gremio profess to be granted by virtue of another-a special-and, as it now appears, an insufficient and inhabile title.

Upon the best consideration, therefore, which I have been able to give to this part of the case, I am unable to sustain the Crown's defence of positive prescription.

I have therefore to propose to your Lordships that the Lord Ordinary's interlocutor should be altered, the defences repelled, and judgment pronounced in favour of the pursuer.

Agents for Pursuer-Mackenzie & Kermack, W.S.

Agent for Defender-Donald Beith, W.S.

Friday, January 13.

(Before seven Judges.)

SIBBALD'S TRUSTEES V. GREIG AND OTHERS. Trust

Testament-Residue Clause RevocationNecessary Implication. Terms of a deed which held (before seven Judges, dissenting Lord Cowan) to operate a revocation by necessary implication of nineteen testamentary bequests of a previous date, found in the repositories of the truster.

Expenses. A number of claimants who appeared

and successfully maintained the same case, held entitled among them to the expense which would have been incurred had only one of them argued the case.

This was an action of multiplepoinding and exoneration at the instance of the trustees and executors of the late Dr John Robertson Sibbald, against the several beneficiaries under Dr Sibbald's testamentary bequests. Twenty-one writings of a testamentary nature were found in Dr Sibbald's

repositories, varying between the years 1863 and 1868, and all of them, with the exception of a trustdeed executed in 1863, were holograph of the deceased. The twentieth of these writings was a holograph will, dated 15th June 1868. It conveyed his whole property, heritable and moveable, to trustees, and after the enumeration of a number of legacies, annuities, and bequests, contains the following residue clause: "And I wish the residue of my estate, other than disposed of by any codicil I may execute for behoof of various friends, such as trinkets, jewels, plate, or household furniture, which I wish to have effect same as this deed written on a separate paper, all not so disposed of being the entire residue of my estate, to be applied for benefit of persons labouring under incurable disease, either by pensions or of any infirmary or hospital having distinct wards for such cases my trustees may appoint." Subsequent to this will the testator executed a list of gifts, dated 24th July 1868, which is annexed to the 21st or last of his testamentary writings. Claims were put in to the multiplepoinding on behalf of all the claimants included in the several writings, many of them maintaining their right to cumulative legacies. After closing the record and hearing parties, the Lord Ordinary (MURE) pronounced the following interlocutor:

"13th April 1870.-The Lord Ordinary having heard counsel for the claimants, the trustees of the late Dr Sibbald, and for the Royal Infirmary of Edinburgh, and The Shipwrecked Fishermen's and Mariners' Society, and for Mrs Eleanor Ferguson or Macguire and her husband, and other claimants, and considered the Closed Record and productions, Finds that the writings Nos. 9, 12, and 17 of the print appended to the record are not testamentory writings of the late Dr Sibbald: Finds that the deeds and writings Nos. 1, 3, 5, 7, 8, 10, 11, 13, 14, 15, 16, 18, 19, and 20 of the said print, and also that portion of the writing No. 21 of the print, commencing with the date 5th June 1868, and ending with the initials J. R. S., are probative testamentary writings of Dr Sibbald: Finds that the writing No. 2 of said print is probative and testamentary, with the exception of the part of it at the bottom of page 81 and top of page 82, headed written on other side': Finds that the writing No. 4 of said print is probative and testamentary, with the exception of the portion on pages 84 and 85, headed Vidimus of testamentary arrangements': Finds that the writing No. 6 of the said print is probative and testamentary, with the exception of the part on page 89, headed 'Mrs Sibbald's jewels, &c.': Finds that the said deeds and writings which are testamentary have not been revoked by the trust-deed executed by Dr Sibbald on the 15th of June 1868; Therefore repels the first plea in law for Dr Sibbald's trustees, and before further answer appoints the case to be enrolled, that parties may be heard upon the effect of the above fiindings on their respective rights and claims in this process; and reserves in the meantime all questions of expenses."

"Note. As there is no clause in any of the various trust-deeds left by the late Dr Sibbald which declares that any legacies or bequests made by separate informal writings or memoranda shall be held to be part of his settlement, as there was in the cases of Gillespie, December 20, 1831, and Baird Preston, July 15, 1856, the Lord Ordinary has dealt with each of the various writings founded on in this case upon the footing that unless in it

self probative and of a testamentary character, it cannot be held to be a part of the settlement in question. But applying this rule in the present case, it appears to him that the greater portion of the writings left by Dr Sibbald, and which are stated in the minute lodged for his trustees to have been all found together in the same box in his dwelling-house in Edinburgh, must be held to be probative and of a testamentary character."

"The Lord Ordinary has however refused effect to Nos. 9 and 17 of the writings in the print appended to the record, because the first of them appears to be a mere note of instructions and memorandum of things to be done; while the other, though bearing to be in some respects of a more formal character, is described by Dr Sibbald himself, by an indorsation on the back of it, as Jottings for settlement by me,' and cannot therefore, it is thought, be held to be a completed act of the will. The question as to the validity of No. 12 is, in the opinion of the Lord Ordinary, attended with more difficulty; and it is apparently a vidimus or memorandum of things done or intended to be done, and does not seem to contain any words of direct bequest, the Lord Ordinary does not think it would be safe to deal with it as an operative part of the settlements."

"With reference again to the deeds and writings which have been found to be probative and testamentary, he has had considerable hesitation in regard to Nos. 8 and 10 of those writings. But, upon examining No. 8 in connection with the notandum dated the 12th of July 1866, at the end of the will dated 2d July 1866, and which is connected with the writing No. 8 by the jotting holograph and initialed by Dr Sibbald at the end of that writing, the Lord Ordinary has come to the conclusion that he would not be warranted in rejecting No. 8 as part of the settlement of Dr Sibbald. And he has come to the same conclusion in regard to the writing No. 10, because it is headed as Directions and Will' of Dr Sibbald in his own handwriting, and although it bears to be initialed only on the first page, it is signed in full at the end, of the same date as the heading at the commencement of the direction, and bears to be initialed as on the 16th of January 1867, as then approved of.

As regards Nos. 2, 4, and 6 of the print, the parties seemed to be agreed that the portions of those writings which the Lord Ordinary has refused to give effect to could not be maintained as probative and testamentary; while, as regards the writings which have been found to be probative and of a testamentary character, it was, as the Lord Ordinary understood, not disputed on the part of the trustees at the debate that, with the exceptions of Nos. 8 and 10 of them, these writings were not open to objection.

"But it was contended on the part of the trustees that the earlier writings of every description had been revoked by the trust-deed of 15th June 1868; and that that trust-deed, together with the writing dated 24th July 1868, alone constituted the settlement of the deceased. The Lord Ordinary, however, having regard to the rules laid down in the case of Stoddart & Grant, 28th June 1852 (1 M'Queen, p. 163), can see no ground sufficient to warrant him in giving effect to this plea. There is no express clause of revocation in the deed of 15th June 1868; and the mere fact of a person making a subsequent settlement cannot, it is thought, have the effect of operating a total revocation of his former settlement, unless the

two are so inconsistent as to be incapable of standing together.

"There is, however, in the opinion of the Lord Ordinary no such inconsistency in the present case, whatever difficulty there may be in deciding which, and whether any, of the various legacies are cumulative or not. And, apart from this fact -viz., the execution of the deed of 15th June 1868 -the Lord Ordinary has been unable to find anything which can be said to indicate, even assuming that deed to be so worded as to operate a conveyance of heritage, which is doubtful, that Dr Sibbald had then any intention of revoking the deeds and writings of an earlier date. Dr Sibbald appears to have been quite aware that there was a power of revocation reserved to him in the mutual settlement of 1863; and that, in such circumstances, it was usual for the party who intended to exercise such a power to do so expressly. He does this in the disposition and settlement of the 4th of March 1867, by which he in so far alters and recalls the deed of 1863. He refers to this power again in the will executed by him on the 1st of August 1867, by which he expressly confirms the will of 1863, excepting in so far as altered by that deed, or by any other direction he might leave. And as he makes no reference to this reserved power in the deed of 15th June 1868, and that deed contains no directions importing any express revocation or alteration of the earlier writings, the Lord Ordinary does not think it can be inferred that when he executed the deed of 15th June 1868 Dr Sibbald intended to recall all the earlier deeds, and relative writings and codicils, which he had so carefully preserved, and to make that trustdeed his only operative settlement."

The trustees reclaimed.

WATSON (with him SOLICITOR-GENERAL) said there were two points before the Court-(1) What writings were to be considered as of a testamentary character? (2) What should receive effect? The Lord Ordinary had dealt with both, and the trustees did not intend to raise any question as to the manner in which he had disposed of the first of these. In regard to the second, he argued that the will of 15th June 1868, by the necessary implication of its terms, operated a revocation of the previous testamentary writings. He specially founded on the terms of the residue clause, maintaining that the words "other than disposed of by any codicil" must be taken to mean any codicil subsequent to the date of the will.

PATTISON and ADAM, as representing the beneficiaries, argued-That all the wills should receive effect, there being no repugnancy in taking them as whole, and that being the rule of construction where no repugnancy occurred. It was specially pleaded on behalf of the Royal Infirmary in addition to the general argument that a bequest to a charity contained in one deed could not be taken away by a later deed except under words importing a direct revocation.

At the close of the argument, the Court appointed the case to be heard before seven judges.

SOLICITOR-GENERAL and WATSON for trustees.
LORD ADVOCATE and ADAM for beneficiaries.
At advising-

LORD JUSTICE-CLERK-The question as it is presented to us for the purpose of the present advising, is, whether the general settlement of 15th June 1868 revoked all the previous testamentary writings executed by Dr Sibbald?

The deed contains no clause of revocation and

no revoking words. The intention to revoke must be deduced from the substance of the deed itself, if it be there at all.

All the numerous testamentary writings which Dr Sibbald left remained uncancelled in his repositories. They must all be held to be of the date of his death, and to express his last will, unless by clear implication he has expressed an intention to the contrary. If the settlements can be read together, and receive just effect, that effect I think they must receive. Thus the real question comes to be whether the deed of 1868 is, or is not, inconsistent with the previous settlements.

Now I do not think it conclusive-indeed hardly material-that the deed of 1868 contains a fresh conveyance of the universitas of the estate. The mere conveyance is only machinery for administration, and whoever the administrators are to be, their administration may be consistent with testamentary purposes previously expressed. Unless these are revoked otherwise, the obligation of giv ing effect to them is one which the law would impose on the trustees, or on any one representing the testator.

I have no idea, therefore, that a change in the persons appointed to act as trustees, and a new conveyance in order to carry out that change, have, of themselves, any legal effect in implying an intention to revoke previous testamentary bequests. Although the universitas of the estate be conveyed, still, if that universitas be not disposed, there can be no inconsistency, or may be none, between the settlement containing the conveyance, and those which preceded it. And although there be a new conveyance to new trustees, and purposes entirely new, there is nothing in a settlement so expressed exclusive of former bequests, unless the universitas of the estate is not merely conveyed but disposed of.

I should have thought, therefore, that this deed of 1868 contained nothing in it which could be held to imply revocation, had there been no disposal of the residue; it being certain that a large proportion of the estate remained undisposed of by the special purposes of that deed. This leads to the consideration of the residue clause, on which, in my opinion, the case entirely depends.

Now I am chiefly anxious in the opinion I am now giving, which is adverse to the conclusion to which the Lord Ordinary has come, to be understood to rest that opinion entirely on the special terms of that clause. The expression "residue " is a very flexible one. If the previous provisions were not inconsistent with prior bequests, these bequests, as they remained unrevoked, still subsisted as burdens on the trust, and thus the term "residue" might be applicable to the sum left over after all subsisting testamentary purposes were provided for; and such a reading would give full effect to the words.

Thus the existence of a residue clause is only important in this question of revocation so far as its terms necessarily imply a disposal of the whole estate. There could be no clearer illustration of this than is to be found in the undoubted effect of the settlements of July 1866 and March 1867. The first contained a residue clause. The second contained a residue clause, and also a clause revoking all prior settlements in so far as inconsistent with it. And yet the one clear element which runs throughout these testamentary writings is the testator's intention that, notwithstanding