Scottish Court of Session Decisions

Miss Isabella Petticrew died at Redburn House, Prestonpans, on 21st May 1884. At the time of her death she had no relatives nearer than the children and grandchildren of first cousins. She also left some second cousins and their descendants. Her moveable estate at the time of her death amounted to £2100 or thereby, and she was possessed of heritage yielding a rental of about £124 per annum.

On 11th December 1878 she had executed a trust-disposition and settlement, which was a formal deed prepared by her law-agent, and was thereafter handed to her by him, and kept by her till her death. By this deed she made over her whole estate and effects, heritable and moveable, to four trustees, for the following purposes—In the first place, for payment of all her debts, deathbed and funeral expenses, and the expenses of executing the trust: In the second place, for payment of (1) four legacies of £50 to each of her four trustees and executors; (2) three legacies of £200 to each of Isabella Pettigrew, residing with her, Margaret Pettigrew or Mackintosh, and Janet Pettigrew, all daughters of John Pettigrew senior, mason, East Linton (second cousin of the testatrix); (3) two legacies of £100 each to Isabella Pettigrew Thom and Elizabeth or Bessie Thom, daughters of Alexander Thom, tailor, Edinburgh, and Mrs Lillias Rodger or Thom, his wife (who was a second cousin of the testatrix); and (4) she bequeathed her whole furniture and all her wearing apparel and jewellery to the said Isabella. Pettigrew: In the third place, she directed her trustees to dispone and convey four separate heritable properties belonging to her, and situated in Prestonpans, to the following parties respectively, viz., the subjects therein first described to George Mackie (son of a first cousin) and his wife, or the survivor in liferent, and their son in fee; the subjects therein second described to James Pettigrew, mason, East Linton (son of the foresaid John Pettigrew senior), under the real burden of a yearly payment of £20 to Jane and Helen Fraser, drapers, Prestonpans (daughters of a first cousin), during their joint lives and to the survivor; the subjects therein third described to William Pettigrew (son of John Pettigrew senior); the subjects therein fourth described to John Pettigrew senior and his wife, and survivor in liferent; and a portion of certain subjects to John Pettigrew junior, mason, East Linton, in fee, and the remaining portion to James Pettigrew Sinclair, son of one of the trustees, Robert Sinclair (and grandson of John Pettigrew senior), in fee: In the fourth place, she directed her trustees to pay Government duties equally according to the proportion payable by her legatees or beneficiaries, so far as the residue would permit, and to pay the residue of her estate equally between Isabella Pettigrew and Christian Rodger or Porter (a second cousin), wife of John Porter, grocer, Prestonpans: And lastly, she made sundry declarations and provisions, and inter alia reserved full power to revoke the said deed in whole or in part.

On the morning after Miss Petticrew's death the settlement was found by her agent in a compartment of a locked desk which she always kept in her bedroom, and of which she kept the keys. The settlement was enclosed in an envelope, which was unsealed and unaddressed, and without any markings. On the outside of the deed, or on the reverse side to the backing, the following words were written in pencil:—“Residue of estate to be given to Jane Fraser, draper, and her sister, Helen Fraser, or surviver, Christian Porter or Rodger deleted, deleted also the names of Isabela Petticrew and Bessie Thom, Dauthers, Alex. Thom, Edinr.” This pencil writing was holograph of the deceased, but was not signed nor dated. It was not known when the words were written by the deceased, but no such words were on the deed when it was executed by her and handed to her by her agent. She did not mention to anyone, so far as could be ascertained, that she had executed the writing, or that she intended making any alteration on her settlement.

This Special Case was adjusted to try the question whether this pencil writing formed one of her testamentary writings. Miss Petticrew's trustees were the first parties; Isabella Pettigrew the second party; Mrs Porter, Isabella Pettigrew Thom, Elizabeth or Bessie Thom, and Alexander Thom (their father), third parties; and Jane Fraser and Helen Fraser fourth parties.

The fourth parties maintained that the pencil writing formed one of the testamentary writings of the deceased, while the third parties maintained that it did not.

The questions of law were—“(1) Is the holograph pencil writing … part of the testamentary writings of the said deceased Miss Isabella Petticrew; and are the parties of the fourth part entitled, by virtue of said pencil writing, to the whole residue of the said deceased Miss Isabella Petticrew's estate, or to any and what part thereof? (2) In the event of the first part of the first query being answered in the affirmative, does the said pencil writing revoke all or any of the bequests of the shares of residue and the special legacies bequeathed to the second and third parties respectively by said trust-disposition and settlement, and if so, which of them?”

The Court desired that the argument might be

Page: 172↓

confined, in the first place, to the question of the validity of the writing.

Argued for the fourth parties—On the question of the validity of the pencil-writing.—The case was distinguishable from all previous cases of the kind in which unsigned holograph documents had been held to form uncompleted acts — Skinner v. Forbes. November 13, 1883, 11 R. 88; Russell's Trustees v. Henderson, December 11, 1883, 11 R. 283; Brown v. Maxwell's Executors, May 21, 1884, 11 R. 821; Dunlop v. Dunlop, June 11, 1834, 1 D. 912. It came under the exception in the dictum, of Stair (iv. 42, 6). This document was written “on an authentic writ,” and was therefore in itself probative. That it was in pencil did not affect its validity— Simsons v. Simsons, July 19, 1883, 10 R. 1247.

Argued for the third parties—A writing so informal had never of itself been sustained as part of a testament. There were no corroborating circumstances here, as in the cases relied on for the fourth parties. The jotting in question was not in such a favourable position as the marginal note in Brown v. Maxwell's Executors, which was rejected. The passage in Stair relied on referred to documents of debt inter vivos, and not to testamentary writings. This was clear from the words used, that they are not to be “resiled from,” and from the case of Wauchope v. Niddrie, referred to by Lord Mackenzie in the case of Dunlop.

At advising—