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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Dunsmure's Execuiors and Others [1878] ScotLR 16_87 (9 November 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/16SLR0087.html Cite as: [1878] SLR 16_87, [1878] ScotLR 16_87 |
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Page: 87↓
A testatrix stated in her will that any informal document afterwards executed by her if clearly expressive of her intention and holograph and signed by her, should receive effect. On March 16, 1878, she executed an in formal codicil, leaving legacies to a number of persons, and delivered it to her agent. After her death there was found in her repositories a memorandum dated February 6, 1878, similar in its provisions to the codicil of March 16, except that it contained one legacy which was not contained in the latter. Held that the writing of February 6 was a writing of a testamentary nature, but superseded by the codicil of March 16 with respect to all its provisions except the one legacy not mentioned in the later deed, which fell to be given effect to.
Miss Helen Dunsmure died on 7th May 1878, leaving a settlement, prepared according to her instructions by her agents, under which Mrs Jane Dunsmure or Tennent, the second party to this case, was appointed her residuary legatee. The deed contained this declaration—“But declaring always that these presents are granted under burden of all my just and lawful debts, deathbed and funeral expenses, and any legacies which I may leave by any codicil hereto, or by any writing under my hand, or by any memorandum or directions holograph of or signed by me, clearly expressive of my will and intention, however informal.” The testatrix also reserved full power to alter, innovate, or revoke the deed in whole or in part at pleasure, and revoked all wills and writings of a testamentary nature previously executed by her.
Some months after the date of this settlement Miss Dunsmure delivered to her agent a codicil, dated 22d May 1877, in which she made a number of bequests which she desired should be free of legacy-duty. She subsequently sent her agent the following document, dated March 16, 1878:—
“ Dunsmure Lodge, Corstorphine,
March 16 th, 1878.
In my former bequests the sums therein left to particular friends I now wish to increase as mentioned below. Therefore I leave and bequeath to—
Mr James Dunsmure,
£1000
H. Johnston, Esq.,
500
Rev. R. K. D. Horne,
500
Mary Robertson and Mary Mackenzie, my two servants, £100 each; and I hereby revoke the legacies given in my codicil dated May 22d, 1877, to all these parties.
In addition to these legacies I leave and bequeath to Miss Catherine Walker, daughter of the late Andrew Walker, Esqre., of Ceylon, £500.
Mrs Baillie (my cousin), widow of W. R. Baillie, £1000.
To William Chalmers Fowler, M.D., £200.
To six cousins [named], £200 each.
The Parish Corstorphine, £100 for necessitous poor.
“ Helen Dunsmure.“
The settlement, from the date of its execution, and the two codicils, from the dates of their delivery until Miss Dunsmure's death, were in her agent's custody.
After Miss Dunsmure's death her agent on searching her repositories found in her writing-desk, which was left open by her in her dining-room, a document holograph of her, dated February 6, 1878, in the following terms:—
6th Febry. 1878.
In my former bequests the sums I left to particular friends I wish now to be—
Mr James Dunsmure,
£1000
Mr Henry Johnston,
500
Rev. K. D. Horne,
500
Mary Robertson,) my servants
100
“Mary M'Kenzie,
100
£2200
Brought forward,
£1000
“To Katharine Walker,
£500
“And her sister Mrs Conway Cooke,
500
1000
“Daughters of the late Andrew Walker, Esqre., of Ceylon,
1000
3200
“ Helen Dunsmube.”
To parish of Corstorphine for necessitous poor, 1 hundred pounds.
“To William Chalmers Fowler, M.D., £200
“ H. Dunsmube.”
This document formed the subject of the present case. The parties believed that it was not communicated by Miss Dunsmure to anyone in her lifetime, and they were agreed that no further evidence regarding it could be obtained. Miss Dunsmure left means and estate amply sufficient to pay the sums (free of legacy-duty) mentioned in the writings both of 6th February and 16th March 1878, assuming them to be cumulative legacies.
In these circumstances this Special Case was presented, the parties to which were (1) Miss Dunsmure's executors; (2) Mrs Tennent, her residuary legatee; and (3) the parties named in the writing of 6th February 1878. It was maintained by the party of the second part that it was not the intention of the testatrix that the writing of 6th February 1878 should have effect as a testamentary instrument; that it was a mere draft or memorandum made with a view to the preparation of a holograph codicil, and in particular that it contained no words of bequest, and that otherwise it was not “clearly expressive” of her will and intention. Further, it was maintained that by the terms and by the subsequent execution and delivery to her agent of the codicil of 16th March 1878 it might be inferred that the writing of 6th February 1878 was superseded or passed from as a record of Miss Dunsmure's testamentary intentions, or was revoked if it ever had any testamentary effect. It was in this view contended that as Miss Dunsmure expressly revoked in the codicil of 16th March 1878 the codicil of 22d May 1877 as regarded the parties named in it, to whom increased legacies were given by the codicil of 16th March 1878, she had viewed the writing of 6th February 1878 as superseded by that codicil, and so not calling for special notice, and did not intend both instruments to be operative.
The parties of the third part, being the parties named in the writing of 6th February 1878, maintained that the said writing was a testamentary instrument of Miss Dunsmure and operative, and that the respective individuals who were mentioned both in the writing of 6th February 1878 and in the codicil of 16th March 1878 were entitled to legacies of the amounts specified in the writing of 6th February 1878 in addition to the legacies to which they are entitled under the codicil of 16th March 1878. Mrs Conway Cooke, who was named only in the writing of 6th February 1878, claimed a legacy of £500 under that writing.
The questions of law submitted to the Court were—“(1) Is the holograph writing of 6th February 1878 a subsisting testamentary instrument of the late Miss Dunsmure? (2) If so, are the
Page: 88↓
legacies mentioned in it, and the legacies to the same parties mentioned in the codicil of 16th March 1878, cumulative? (3) Are the said legacies payable free of legaey-duty? (4) Is Mrs Conway Cooke, who is named only in the writing of 6th February 1878, entitled to a legacy of £500 under that document? (5) If so, is she entitled to have it free of legaey-duty?” At advising—
The difficulty lies in this, that there may be two explanations of the discrepancy between the informal writing of 6th February and the more formal, thought also informal, writing of 16th March. Either in writing out with her own hand the later codicil the testatrix may have forgotten or omitted mention of Mrs Conway Cooke, or in the interval she may have altered her intention. I am inclined to think that this writing of 6th February was a testamentary writing, and having been found in the repositories of the testatrix at her death it must receive effect. It starts with testamentary words and is signed by the testatrix. We cannot treat it as a mere draft or jotting, unless there is something to take it out of the category of a testamentary writing. There is nothing but the fact that the other testamentary writings were lodged with her agents. This is an indication which might be important in connection with other circumstances, but of itself it is not conclusive.
If, then, the writing is to be regarded as testamentary in itself, we have to consider the effect upon it of the subsequent writing of 16th March, which was also informal, and which contains some provisions identical with those in the former writing and some different. In my apprehension it is not unlikely that the testatrix intended that the later writing should supersede the former, but I am of opinion that there are no materials from which we could with certainty or safety hold that the later writing was a revocation of the legacy to Mrs Conway Cooke.
It is important to notice that we are not dealing with a catholic and formal settlement supervening—both the writings of 6th February and 16th March are informal writings, codicils to a prior settlement. If the legatees under the two had been wholly distinct, I should have had no doubt that both must receive effect. On the whole I am disposed to sustain the claim of Mrs Conway Cooke to the legacy of £500.
In regard to the question of duplication, I think there is no case for that. I think the testatrix intended her last expression to be conclusive as to the amount of the legacies therein named.
There is certainly a delicacy in taking out of the writing of 6th February one bequest and giving effect to it, and holding the other bequests as superseded by the later writing. Still I do not think it safe to refuse to give effect to the legacy to Mrs Conway Cooke on the mere conjecture that the testatrix intended to revoke it.
We start with a regularly tested deed of settlement, in which the testatrix contemplates that she may leave legacies by subsequent writings, and decides in a certain way what are to be the requisites of informal writings which are to receive effect. She says that legacies are to receive effect “which I may leave by any codicil hereto, or by any writing under my hand, or by any memorandum or directions holograph of or signed by me, clearly expressive of my will and intention, however informal.” Now, I take it that if this lady had died leaving nothing but this writing of 6th February, it must have received effect, or if she had died leaving this writing and nothing else but the codicil of 22d May 1877, it must have received effect along with that codicil. It fulfils the conditions required by the settlement. It is holograph, it is signed, and it is clearly expressive of the intention of the testatrix. The meaning is—whereas by formal writings I left certain legacies to particular friends, I wish those sums not to be those formerly mentioned but what I now mention. I think the words used are quite sufficient testamentary words as expressing her intention at that date. Then come the legacies, certain legatees under the former codicil are to receive increased legacies, and then certain other legatees are mentioned, who are not mentioned in the former codicil. Mr M'Laren in his argument called the writing a memorandum, but that does not depreciate its effect. Memoranda signed by herself are just what the testatrix says in her settlement shall receive effect. Then comes the writing of 16th March 1878, in which she repeats all the legacies but one which are contained in the writing of 6th February, revokes the legacies given to the same legatees by the codicil of 22d May 1877, and gives a number of additional legacies to persons whose names do not appear in either of the former writings.
I think that all three writings must be taken as effectual testamentary memoranda. I cannot exclude any of them as forming no part of the testamentary deeds left by Miss Dunsmure. If I could gather that the legacies which are repeated were intended to be cumulative, I should give effect to them as cumulative legacies. If, as I think is the case, they are mere repetitions of the same legacy, then the legatees will not be entitled to double payment. But when I find one person whose name is in the writing of 6th February and not in the last writing, I do not find sufficient reason for excluding her simply because her name does not so appear. Take it that the bequest to her was made in a separate memorandum—that she had a codicil to herself—I could not deny her right to have it. We see from other writings that the testatrix knew how to revoke when she wished to do so; she has not done so with regard to this legacy, and therefore I think we should answer this question to the effect of sustaining the legacy to Mrs Conway Cooke.
Page: 89↓
If she had written on the back of it “superseded” or any similar words, it would not have been a testamentary instrument to receive effect, or if any sufficient fact tending to that result and capable of being judicially established could have been ascertained, then we should have rejected it, and accordingly the question is narrowed to this, Whether the subsequent writing of 16th March caused the February writing to have no effect? Now, does the execution by her of the instrument of 16th March indicate this satisfactorily, viz., that the writing of February is not to be taken as expressive of her last will. I think with your Lordships that the later instrument is to be taken as superseding the instrument of February with respect to all the legacies mentioned in both. It is not revoking, but superseding, and that leads satisfactorily to the conclusion that the instrument of February was superseded by that of March with respect to all that is contained in that of March.
But then there is a legacy in the instrument of February which is not in that of March, and therefore the same argument does not hold; it is not superseded by a larger legacy. Is this legacy then cancelled and struck out of all the testator's testamentary writings, and are we to hold it so?
I agree with your Lordships that that is a conclusion which it would be unsafe to arrive at, and therefore I think that the instrument of February should receive effect so far as it has not been superseded by that of March.
Their Lordships therefore answered the questions as follows:—The first in the affirmative; the second in the negative; the third to the effect that her legatees who were not mentioned at all in the codicil having reference to legacy duty should have no benefit from it, and should therefore not get their legacies duty free, but that where increased legacies were given to people who were previously mentioned, their legacies were to be duty free; quoad ultra unnecessary to answer.
Counsel for First and Second Parties— M'Laren — Macfarlane. Agents— W.& J. Cook, W.S.
Counsel for Third Parties— Kinnear—Pearson. Agents— Mylne & Campbell, W.S.
