Scottish Court of Session Decisions

John Blackwood, surgeon, Catrine, Ayrshire, died in January 1875, unmarried and without issue. He had for many years resided on the most friendly terms with his only brother William, who was also a bachelor. In the repositories of the deceased were found lying together two holograph testaments and a holograph letter addressed to his brother. By the earlier of the testaments, which was dated 15th June 1859, his brother was left sole executor and universal legatory, under burden of payment of debts and a legacy to his servant. The later will was dated 1st September 1871, and by it the deceased appointed John Beveridge and Alexander M'Master his executors, and directed a new distribution of his moveable estate, making no mention of his brother. The holograph letter was undated, and was in these terms:—“Dear Brother,—You will perceive I have made the will very simple instead of entering them as legacies I would wish as soon as convenient to make the following donations from the estate £100 sterling to the Catrine Public School the money to be safely invested and the interest applied annually in giving prizes to the scholars £10 sterling to the Catrine Public Library £5 to the Catrine Funeral Society £5 to the Catrine Mortcloth Society (if distinct) from the Funeral Society £5 to Robert Pollock £10 to Charles Pollock.

“Do not delay making a will for yourself. You may perhaps find another drawn as if I happened to outlive you you can destroy it. I beseech arrange and part calmly with Janet the servant and besides the legacy you will require to pay her wages and give her a suit of mourning. (Signed) John Blackwood.”

In these circumstances, the said William Blackwood, brother of the deceased (the first party), and the said John Beveridge and Alexander M'Master (the second parties) asked the opinion and judgment of the Court on the following queries:—“(1) Whether the party of the first part is entitled to administer the moveable estate of the deceased as executor under the testament of 15th June 1859? or, (2) Whether the parties of the second part are entitled to administer said estate as executors under the testament of 1st September 1871? (3) Whether, in the event of the estate falling to be administered by the first party, he will be bound to give effect to the undated letter by the testator before mentioned, and pay the legacies therein set forth? and whether he will be bound to pay the legacies set forth in the testament of 1st September 1871? and in the cases where there are legacies to the same parties both in the said letter and in the testament of September 1871, he will be bound to give effect to the letter or to the said testament, or to both? (4) Whether, in the event of the estate falling to be administered by the parties of the second part, they will be bound to give effect to the undated letter? and in the cases where there are legacies to the same parties both in the testament and in the letter, they will be bound to give effect to the testament or the letter, or to both?”

At advising—