Scottish Court of Session Decisions

This was a Special Case presented in the following circumstances:—Miss Mary Murray died on 21st April 1868, leaving a trust-disposition and settlement conveying her whole estate to certain trustees. The said trust-disposition and settlement contained directions to the said trustees and executors for the payment of various legacies at the first term of Whitsunday or Martinmas happening six months after the death of the truster's sister, Miss Ann Murray, and inter alia, “to the three daughters of the late Mrs Archibald or Cunningham, at Newport, equally, or to the survivors or survivor of them, £150 sterling as a small remembrance, and that free of legacy duty.” The deed also contained the following clause:—“And I reserve not only my liferent right and enjoyment of the whole premises, but also full power and liberty to myself, at any time of my life, and even on deathbed, to give any additional instructions relative to the disposal of my estate, and to alter, innovate, or revoke these presents in whole or in part as I shall think proper.” There was found in Miss Mary Murray's repositories in her dwelling house, after her death, a holograph memorandum in the following terms,:—“ Mem., 6th December 1867.—

Page: 441↓

To let Mr Tod know that I wish (the bequest and) the name of Cunningham to be erased from my settlement; and I do hereby desire it to be done.— Mary Murray.” The truster's said sister, Miss Ann Murray, died on the 17th day of December 1809. The said three daughters of the said Mrs Archbald or Cunningham, mentioned in the said settlement, and above named, were connections by marriage of the testatrix through their mother. They all survived the said Mary Murray, but one of them, viz., Miss Barbara Gray Cunningham died intestate and unmarried on 9th December 1869. She is therefore represented by her two sisters and her father. The said memorandum was never communicated during Miss Mary Murray's life to Mr Henry Tod senior, W.S., senior partner in the said firm of H. & H. Tod, who is believed to have been the “Mr Tod” therein referred to; nor was he otherwise made aware of the wish therein expressed. The trustees of Miss Mary Murray declined to pay to the Misses Eliza Campbell Cunningham and Mary Boston Cunningham, and the representatives of Miss Barbara Gray Cunningham, the legacy of £150, on the ground that it had been recalled by the terms of the memorandum. On the other hand, the Misses Eliza Campbell Cunningham and Mary Boston Cunningham, and the representatives of Miss Barbara Gray Cunningham, for their respective rights and interests, claimed the full amount of the said legacy, on the ground that the memorandum did not form a codicil to the trust-disposition and settlement, or a proper testamentary writing, but only contained instructions to the truster's agent (but which were never carried out), and that the legacy was not revoked by the said memorandum; and further that, looking to the phraseology and purport of the memorandum itself, which appeared intended to refer to some one person named Cunningham, and not to the before designed legatees, the intention of the truster in executing the said memorandum failed from uncertainty, even if it could be held that the said memorandum constitutes a proper testamentary writing.

The following were the questions laid before the court;—

(1). Whether the said legacy of £150, directed by the said trust-disposition and settlement to be paid to the three daughters of the said Mrs Archibald or Cunningham as aforesaid, is now payable; or

(2). Whether the said legacy has been recalled by the said memorandum printed in the appendix.

Macdonald and Asher, for the legatees, relied on Walker v. Steel, 16 Dec. 1825, 4 S. 323; Stainton, 17 Jan. 1828, 6 S. 363.

Fraser, for the trustees, relied on Scott v. Sceales, 2 Macph. 613.

The Court answered the first question in the affirmative, and the second in the negative.