Scottish Court of Session Decisions

Mrs Smyth or Brander, who resided at Dumfries, died on July 2, 1882, leaving a trust-disposition and settlement dated 15th February 1881, by which she conveyed to the Rev. John Paton and others, as trustees, her whole estate, heritable and moveable, of whatever kind, which should belong or be addebted to her at the time of her decease.

By the second purpose of her said trust-disposition and settlement the truster directed her trustees to pay the following legacies out of her share of the trust-estates of her late father Christopher Smyth, and her late brother Thomas Robinson Smyth, viz.:—(1) To her brother John Alexander Smyth, £500; (2) to his son Christopher Smyth, £500; (3) to Margaret Brander Anderson, daughter of her niece Lizzie Smyth or Anderson, whom failing to her said niece, £500; and (4) to her niece the said Lizzie Smyth or Anderson, £500. By the fourth purpose she directed her trustees to pay certain legacies, “and to divide the remainder of my jewellery along with my body—clothes as may be directed by any memorandum

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to be left by me, or failing such, as they may think proper, among my friends and acquaintances.” The trust-disposition and settlement was placed by Mrs Brander in the hands of her law-agent Mr M'Gowan (one of her trustees), who retained the custody thereof until her death.

At a meeting of relatives and trustees of the truster, held after her funeral on 6th July 1882, her only surviving brother, the said Mr John A. Smyth, stated that shortly before her death she had informed him that she had left a testamentary document in her own handwriting addressed to him. In consequence of this statement a search was made in her repositories, and two documents were found in a chest of drawers containing her clothes and trinkets. One of the documents thus found was a holograph writing on the face of a half-sheet of note-paper, signed by the deceased, and dated 24th October 1880. It was in these terms:—“My best gold watch and chain to my name-child Maggie Brander Anderson, also my large coral beads & 2 of my best brooches, my India gold bracelets, which belonged to my dear husband's mother, to go to Maggie Brander Anderson; also to Mary Anderson, my niece, any pieces of jewellry that may be suitable for her; also £500 to my dear niece Lizzie (Mrs Anderson). — Margaret Brander.—24 th Octr. 1880.” This piece of paper was folded, and was addressed on the back thus—“Mr J. A. Smyth or my trustees. I declare this is my wish. — M. Brander.” It was enclosed in an envelope fastened with gum, and addressed on the outside—“John A. Smyth, Esq. To be given him by & bye. 7th March 1881”—the address being also holograph of the deceased. The other document found was a holograph writing on a sheet of note-paper, signed by the deceased and two witnesses, and dated 24th November 1880. She thereby appointed new trustees to her then existing will (a settlement executed in April 1880, and subsequently cancelled by that of 1881), which was in the hands of Mr M'Gowan, and added the following bequest:—“I also desire that my niece Lizzie Anderson should have £500 out of the funds that my brother J. A. Smyth has in his hands belonging to the trust-estate of my late father Chr. Smyth.” This document was folded and enclosed in an unfastened envelope, addressed thus on the outside in the handwriting of the deceased:—“To my dear brother John, and the trustees, Revd. Mr Paton and Mr J. H. M'Gowan, 3d Novr. 1880.” The earlier will of 1880 just referred to was similar in structure, and, with a few exceptions, identical in its terms with that of 15th February 1881, the only difference material to the present question being in the legacies left by the testatrix out of her share of the trust-estates of her father and brother. The settlement of 1880 contained only three legacies so payable, viz.:—(1) £500 John Alexander Smyth; (2) £500 to Christopher Smyth; and (3) £500 to Margaret Brander Anderson, whom failing to Lizzie Smyth or Anderson. The corresponding clause in the settlement of 1881, as originally engrossed, was in exactly the same terms, but the words “and to my niece, the said Lizzie Smyth or Anderson, the sum of £500,” which were afterwards added to the later deed, were added on the margin at the time of execution, and referred to as being so added in the testing clause thereof.

Christopher Smyth, the father of the testatrix, died on or about 23d April 1843, and John A. Smyth was the only accepting and surviving trustee under his trust-settlement. Thomas Robinson Smyth died on or about 20th April 1860, and John A. Smyth and John Symons, writer, Dumfries, were the accepting and surviving trustees under his trust-settlement. Mrs Brander was a beneficiary under both settlements. No final division of the father's estate had yet taken place.

In these circumstances questions arose as to the construction and effect of Mrs Brander's trust-disposition and settlement, and of the holograph writings, and the whole parties interested concurred in stating this Special Case for the opinion and judgment of the Court. These parties were (1) Mrs Brander's trustees, (2) Mrs Lizzie Smyth or Anderson and her husband, and (3) the residuary legatees under Mrs Brander's final settlement of 15th February 1881. The first and third parties maintained that the holograph writings, dated 24th October and 24th November 1880 respectively, were revoked by the execution of the trust-disposition and settlement on 15th February 1881; or at all events that the various bequests in favour of Mrs Anderson were not cumulative but substitutional. They therefore maintained that she was entitled only to a single legacy of £500. On the other hand, the second parties maintained that the said holograph writings were subsisting and operative testamentary writings of the deceased, and that Mrs Anderson was entitled to a legacy of £500 under each of them, or at least under one or other of them, in addition to the legacy of that amount bequeathed by the trust-disposition and settlement.

The questions of law for the opinion of the Court were as follows:—“(1) Whether Mrs Anderson was entitled to the bequest of £500 out of the estates of the testatrix's father, contained in the holograph writing of November 1880, in addition to the legacy of £500 out of the estates of the testatrix's father and brother contained in the settlement of February 1881? (2) Whether she was entitled to the bequest of £500 contained in the holograph writing of October 1880 (enclosed in the envelope dated 7th March 1881), in addition to the legacy or legacies above mentioned? (3) In the event of the last question being answered in the affirmative—Whether the first legacy therein referred to was payable out of the general estate of the testatrix or out of the share falling to the testatrix of her father's estate?”

Argued for first and third parties—The holograph writings of 24th October and 24th November 1880 were revoked by the trust-deed of 15th February 1881. Mrs Anderson, then, was only entitled to a single legacy of £500— Sibbald's Trustees v. Greig, &c., Jan. 13, 1871, 9 Macph. 399. The case of Arres' Trustees was inapplicable. In it it was suggested that the later document might be regarded as a universal settlement, and if so, there could have been no question.

Argued for second parties—When a testator bequeathed the same sums in two or more separate testamentary writings to the same legatees, the legacies must be regarded as cumulative, unless there was something to show that a different construction was necessary, and that

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the later legacies were substitutional. Mrs Anderson, then, was entitled to £500 under each of the writings, or at least under one or other of them, in addition to the legacy of that amount in the trust-deed. Though the document first in date was prior in date to the trust-disposition and settlement, yet the fact that it was contained in an envelope dated posterior to the trust-settlement showed that it was Mrs Brander's intention to increase the bequest in her trust-settlement.

Authorities— Horsbrugh and Others v. Horsbrugh, May 4, 1865, 9 D. 324; Tennent, &c., v. Dunsmure, &c., Nov. 8, 1878, 6 R. 150; Arres' Trustees v. Mather, &c., Nov. 10, 1881, 9 R. 107; Royal Infirmary of Edinburgh, &c. v. Muir's Trustees, Dec. 16, 1881, 9 R. 352; Tuckey v. Henderson, July 22, 1863, 33 Beaven's Rep. 174; Wilson v. O'Leary, Feb. 26, 1872, L.R., 7 Ch. App. 448.

At advising—