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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grant and Another (Taylor's Executrices) v. Thom and Others [1913] ScotLR 55 (21 November 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/51SLR0055.html Cite as: [1913] ScotLR 55, [1913] SLR 55 |
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Page: 55↓
(Before Seven Judges.)
[Sheriff Court at Aberdeen.
An unsubscribed document in the form of a will, holograph of the deceased, was found in her repositories inside an unsealed envelope, on the back of which were written the words “My will.” The document, which was headed “Sunnybank Alford My last will Jessie Taylor,” disposed of her whole estate.
Held ( diss. Lords Salvesen, Mackenzie, and Guthrie) that it could not receive effect as a testamentary writing.
Authorities reviewed.
Mrs Elsie Grant, widow, 107 Warrender Park Road, Edinburgh, and another, executrices-dative of the late Miss Jessie Taylor, Sunnybank, Alford, pursuers, brought an action against Robert Taylor Thom, boilermaker, Inverurie, and others, defenders, in which they sought declarator that the document after mentioned was the valid will of Miss Taylor.
The document in question was as follows:—
“Sunnybank Alford
My last Will Jessie Taylor
“I leave my fourth share of this house to Jessie Taylor Gellie (Dora) my cottage at Kemnay Lilliesleaf to Robert Grant 43 Lauderdale Street Edinburgh Sell out my shares in the N. of S. and T. & County Bank. also N. of S. & Steme Coy and Scotish Union & N. Insurance Coy also what money may be in the Bank after my funeral divide it equally between Mrs Grant 107 Warrender Park Road Mrs Gellie 110 Desswood Place Aberdeen Dr Grant George Alford Grant Vancouver Cara Grant Robina Thomson Glassgreen & Isbe Thomson Jane Joiner and Freida Joiner let all share alike also Eleanor Thomson King Williams Town S. Africa to Nellie Grant £5 because of her usage to me when living in her Father's house last. my clothes divided among those also my bedding linnen and the furniture to Robert Grant my eight day or Grandfather clock what furniture is not wanted sell out and let the money go with what is in the Bank Mrs Thomson Glass-green all my dishes or however many she want divide the books I would not like the Bibles sold”
The defenders pleaded, inter alia—“(2) The alleged testamentary writing founded on not having been subscribed by the said Jessie Taylor is inoperative as her will, and decree of absolvitor should be granted accordingly with expenses.”
On 12th July 1913 the Sheriff-Substitute ( Young), after a proof, pronounced this interlocutor—“Finds in fact (1) that the late Miss Jessie Taylor, whose ordinary residence was at Sunnybank, Alford, Aberdeenshire, died in a nursing home at Aberdeen on 26th February 1913; (2) that shortly after her death an examination was made of her repositories in her house at Alford, and in particular attention was directed to a locked drawer as the place in which she was accustomed to keep papers of value and importance; (3) that in that drawer, part of a chest of drawers which stood in the kitchen, there was found, along with share certificates, deposit-receipts, and titles to property, an unclosed envelope, No. 5 of process, on the back of which was written the words ‘My will,’ and inside which was the document No. 5a of process; (4) that this document does not expressly bear to be written by the deceased, but it, as well as the words on the envelope, has been proved to be in her handwriting; (5) that at the beginning of the document and slightly separated from the body of it there is this heading, ‘Sunrrybank Alford My last will Jessie Taylor,’ and what follows contains words of bequest, and appears to deal with every item of the deceased's estate excepting a small sum of cash in the house and a proportion of rents current at her death; (5) that the said document is not dated, but there is evidence to the effect that in all probability it was written after September 1912; and (7) that it is not subscribed: Finds in law that the said document, not being subscribed, is not a valid and effectual testamentary writing: Therefore refuses decree of declarator as concluded for.”
The pursuers appealed.
On 17th October 1913 the First Division appointed the case to be heard before a Court of Seven Judges.
Argued for appellants—Subscription was not essential where, as here, its equivalent was present— Russell's Trustees v. Henderson, December 11, 1883, 11 R. 283, 21 S.L.R. 204; Murray v. Kuffel, 1910, 2 S.L.T. 388. The words “My last will Jessie Taylor.” were equivalent to “what follows is my will, Jessie Taylor.” A valid will might adopt as part of it marginal additions or informal writings, provided the intention to adopt were clear— Gillespie v. Donaldsons Trustees, December 22, 1831, 10 S. 174; Baird v. Jaap, July 15, 1856, 18 D. 1246. The question, in short, was one of adoption and identification. Esto that the early cases of Titill (1610), M. 16,959, and Pennycuick (1709), M. 16,970, in which testamentary effect was given to holograph writings though unsubscribed, were not now law, and that subscription was essential—Stair, iv, 42, 6; Dunlop v. Dunlop, June 11, 1839, 1 D. 912—subscription was present here, for the words “my last will” were duly signed. That was sufficient to distinguish this case from those of Dunlop ( cit.); Skinner v. Forbes, November 13, 1883, 11 R. 88, 21 S.L.R. 81; Goldie v. Shedden, November 4, 1885, 13 R. 138, 23 S.L.R. 87; Foley v. Costello, February 6, 1904, 6 F. 365, 41 S.L.R. 286; and Shiell v. Shiell, 1913, 1 S.L.T. 62, in all of which it was held that an unsubscribed
Page: 56↓
holograph document could not receive effect as a testamentary writing. Argued for respondents—It was not clear that the words “My last will” meant what follows is My last will. They might equally well mean “this is going to be my last will.” If that were so, the document was prima facie incomplete, for it might still be added to. Nor was it conclusive that the writer's estate had all been disposed of, for until the document was finally signed it might be altered. To hold that this document was a valid will would be going further than any of the cases since that of Titill ( cit.), which had not been followed, and would be inconsistent with sound policy. It was not enough that the writer's signature appeared in gremio. The writing must be subscribed—M'Laren on Wills, vol. i, p. 280. The case of Gillespie ( cit.) was distinguishable, for the document there given effect to was referred to in a formal settlement. The words “My last will Jessie Taylor” were equivalent to “I, Jessie Taylor, make my last will as follows,” and an unsigned document in these terms, where the grantor's name appeared merely in the narrative, could not receive testamentary effect— Skinner ( cit.). The case of Speirs v. Speirs, July 19, 1879, 6 R. 1359, 16 S.L.R. 784, was not in point, for there the last of the series of documents, all of which were clearly meant to be read together, was initialled. The case of Russell's Trustees ( cit.) did not conflict with the respondents' contention, for in that case the presumption of incompleteness was displaced by the facts. In so far as it did conflict with the rule that an unsigned holograph writing would not receive effect as a will, it was wrongly decided— Skinner ( cit.), Goldie ( cit.), Foley ( cit.), Petticrew's Trustees v. Pettigrew, December 6, 1884, 12 R. 249, 22 S.L.R. 171. Esto that the Court was entitled to look at any extrinsic evidence of finality— Hamilton v. Whyte, June 15, 1882, 9 R. (H.L.) 53, 19 S.L.R. 688; Lamont v. Magistrates of Glasgow, March 10, 1887, 14 R. 603, 24 S.L.R. 426—such evidence as existed here was inconclusive, and that being so the question depended solely on the terms of the document itself.
Now the question before us to-day is not whether these opinions express truly the law of Scotland, upon which (as I understand) all your Lordships are agreed, but whether or no the doctrines there laid down are applicable to the present case. It is what Lord Fullarton calls, in the case of Dunlop v. Dunlop, (1839) 1 D. 913, a “pure” case. There are no facts and circumstances here. If there were, I presume your Lordships would agree with what was said by Lord President Inglis in the case of Skinner v. Forbes, (1883) 11 R. 88, that “there are cases which give a certain countenance to sustaining unsubscribed holograph testamentary writings upon considerations of facts and circumstances indicating a purpose of the writer to treat the unsigned document as a completed act.” I desire, for my own part, to add that in my judgment the cases there referred to can no longer be regarded as sound law.
The concrete case before us is one in which we are asked to sustain the validity of a writing which is holograph, which is testamentary in form, which was found in excellent company at the deceased's death, and which purports to dispose of the whole of her estate. It lacks a date, which is immaterial; it lacks the nomination of executors, which is also immaterial; and it lacks, as I read it, a subscription; and that is fatal, in my judgment, to its validity. For I read the paper on which the writing is found as one continuous writing, thus—“My last will, Jessie Taylor, I leave”—and so on. That, it appears to me, is the natural way in which to read the writing; for I think it would be dangerous to judge of the validity or invalidity of a testamentary writing by minute consideration of the spaces between words and lines. It is now trite law that if the signature of the writer is found anywhere in the body of the writing or at its very commencement it cannot supply the place of a subscription; and if this writing is read, as I think it should be read, as it seems to me natural to read it, as one continuous writing, it is obviously invalid as a testamentary document, in respect that it lacks a subscription. The cases of Skinner and Goldie and Foley are directly in point. This writing may, however, be read as if the words “My last will” simply signified a title, followed by the signature of the writer. The signature would then be regarded as a superscription and exactly the same result would follow, for it is well-established law that superscription on the part of a subject cannot authenticate the writing.
The writing may, however, be regarded as really two separate and distinct writings, the first a declaration of authentication or identification of the writing which follows, as thus, “What follows is my last will, Jessie Taylor,” and then you turn to the writing which follows to find out whether it
Page: 57↓
Now I hold that it is now the settled law of Scotland that the lack of a subscription indicates an intention on the part of the testator not to regard the writing as a final and complete act. As Lord Fullerton observed in the case of Dunlop v. Dunlop, 1 D. at p. 921, the necessity of subscription to a will is a matter which depends on no technical rule but is familiar to all the lieges without exception. Every man knows the difference between a deed that is signed and one that is unsigned. It appears to me, therefore, that the deceased must have believed and understood that the writing was not effectual so long as he withheld his subscription from it, and that if we now sustained it as a valid instrument we should be making a will which the party died believing to be ineffectual.” That being so, it seems to me plain, to use the language of Lord Deas in the case of Skinner v. Forbes, 11 R. at p. 91, that “there are no doubt advantages in holding that subscription in such cases as this is essential. That rule puts matters of this kind beyond all question, as every man then knows that so long as he does not subscribe the testamentary deed it is not completed, and that he has power to recall whenever he likes, or not to complete it all.”
I decline for my part to weigh probabilities. I think it is dangerous for this Court to weigh probabilities in a question of this kind, and that there is one way of putting probabilities out of the question, and that is by the testator signing the deed. In short, I adhere to the doctrine expressed in the familiar passage by Lord Stair—“If we unfasten our moorings from that doctrine, there is no saying to what length we may drift.”
The law of Scotland gives what I may call a latitudinarian discretion to testators in the expression of their intentions to dispose of their property. But the least thing we can demand now, I think, is a subscription as the one and only reliable index of final and complete intention.
The pursuers, however, argue that, assuming the law to be as above stated, the document under consideration is a subscribed will. It is proved to be holograph of Miss Taylor, and is all written on the same side of a sheet of paper. There is no signature at the end of the writing, but it begins with the words, “Sunnybank Alford My last will Jessie Taylor.” The pursuers say that Miss Taylor has in effect written, “What follows is my last will,” adding her signature, and that she thereby authenticated or adopted or recognised, by way (so to speak) of a schedule, the remainder of the writing, as containing the final expression of her testamentary intentions. The case seems to me a narrow one, and near the line, but I have come to the conclusion that the document is not a subscribed will, and cannot receive effect. It is in the pursuer's favour that the document is all on one sheet of paper, and (so far as appears) may all have been written at the same time, and also that it bears to deal, as the Sheriff-Substitute has found, with every item of Miss Taylor's estate, excepting a small sum of cash in the house and a proportion of rents current at her death. Nor do I attach importance to the absence of date, or of the nomination of an executor. It may be that,
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The case of Gillespie, 10 S. 174, in its second branch, would be an authority against the first two of these propositions. But it cannot stand in view of subsequent decisions, and Lord Balgray's idea that a document not signed could be considered “to be legally signed to all intents and purposes” is one which cannot be entertained.
The pure question arose shortly after in Dunlop's case, and it was emphatically decided that an unsubscribed will was invalid though holograph, though containing the testators name in initialibus, and a declaration that he thereby made his last will and testament, and though purporting to be a universal settlement with residue clause. The Court felt themselves clear of all other considerations, “because the writing in dispute stands alone.” But Lord Cockburn (Lord Ordinary) says—“Where the Court has arrived at seemingly opposite results, it has never been by merely looking at the unsubscribed writing by itself, but always by incorporating it with other matter with which it has a necessary connection. This matter has generally consisted of two circumstances, one or other or both of which have been invariably required to warrant any relaxation of the strict rule. These are that the defects in the instrument have been supplied (1st) by other unobjectionable writings connected therewith by the testator, or (2nd) by evidence of facts extrinsic of the disputed instrument but linked to it. So that, in truth, it has never been the unsubscribed writing alone that has been sustained.” I am not aware of the cases to which his Lordship refers, in which the Court are supposed to have arrived at seemingly opposite results. The only prior cases referred to at the hearing were Titell, (1610) M. 16,959, and Gillespie. Lord Fullarton also said in agreeing in the judgment—“I do not wish to be understood as saying that there are no circumstances in which an unsubscribed deed should receive effect. There may be cases where facts and circumstances occur, sufficient to instruct that an unsubscribed holograph deed was nevertheless the last will of the deceased. But there are no such circumstances here.”
I think that it must now be accepted that Lord Cockburn's second proposition, apparently concurred in by Lord Fullarton, will not hold. And I further think that his first proposition requires consideration, limitation, and definition. It is this point only, I think, which makes the present case of importance, and justifies its being discussed by a Court of Seven Judges. Had I thought it depended on special circumstances, as I gather some of your Lordships do, I could hardly have consented to that course being taken. My own conclusion, after carefully considering the authorities, is that Lord Cockburn's statement, that the defect of subscription can be supplied “by other unobjectionable writings connected therewith by the testator” can mean no more than that there must be subscription, but that that subscription may be indirect, as I have put it in the above propositions, that is, by the subscription
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In Skinner's case, 11 R. 88, the law of Dunlop's case was unconditionally endorsed, though the document in question bore even a greater semblance of being a completed deed than that in Dunlop's case. Lord Deas in fact suppressed his own inclination to dissent, saying—“It is most important that on this branch of the law when a rule has once been decided it should not be opened up again except for some very strong reason, and I look in vain for any sufficient reason why we should reconsider the case of Dunlop.… There are, no doubt, advantages in holding that subscription in such cases as this is essential. That rule puts matters of this kind beyond all question, as everyone then knows that so long as he does not subscribe a testamentary deed it is not completed, and that he has power to recall it whenever he likes, or not to complete it at all. I think, therefore, that on the authority of the case of Dunlop we must find that this deed is invalid.”
Then Foley'scase, 6 F. 365, and Goldie v. Shedden, 13 R. 138, conclusively disposed of the suggestion adumbrated in Dunlop's case that facts and circumstances might supply the want of subscription, and determined that “the law of Scotland requires subscription as the essential and only admissible evidence of a concluded expression of will on the part of a testator.”
None of these cases, however, touch the first point put by Lord Cockburn in Dunlop's case, viz., that defect of subscription can be cured “by other unobjectionable writings connected therewith by the testator.”
In this relation it is necessary to examine the case of Russell's Trustees, 11 R. 283, where a lady left a holograph writing commencing—“I, Margaret Russell, do hereby make my last will and testament revoking all other wills.” She dated but did not subscribe it. It was found contained in a sealed packet, bearing on the outside her signature and the words “James Henderson,” this Mr Henderson being Miss Russell's nephew and the executor nominated in the above writing. Attached to the packet by a string was an envelope addressed “to James Henderson from Margaret Russell,” containing a letter with a date of the same month and year as the above writing, holograph of Miss Russell, stating that she had rewritten her will “for this year,” and giving directions about her funeral. It was signed with her Christian name only, and there was no proof that she was in use so to sign. The whole were stated to have been delivered by Miss Russell to Mr Henderson, with the statement that her will was therein contained, and that they were not to be opened until her death. The Court held that the circumstances supplied the defect of subscription, and the writing was sustained as a valid will. As this question has been sent to Seven Judges, I conceive that I am entitled, if not bound, to examine this judgment, which I should not otherwise do, and I venture to take exception to much which was stated in support of it, and even to entertain grave doubt of the result arrived at. Lord Craighill pronounced the leading judgment, and he proceeds on a view of the virtue and competency of a proof of facts and circumstances which is not consistent with the cases to which I have just referred, and in particular gives weight to the admission—for the question was raised in a Special Case—of what Miss Russell said in delivering the sealed packet to Mr Henderson, evidence of which, I think, would have been entirely inadmissible. But his Lordship also finds sufficient token of authentication under the hand of the lady in the envelope and its contents which was attached by a string to the sealed packet containing the alleged will, and which he held to be an appendage to the will. I should myself have thought that there was neither an intelligible subscription nor an unequivocable connection of the document bearing that subscription by the testator with the unsigned document. Lord Young on the other hand gives an interpretation of Stair, iv, 42, 6, which would leave the validity of all such unsubscribed holograph writings to a question of circumstances. The sound interpretation of the passage from Stair is that given by Lord Shand in Skinner's and Goldie's cases.
In the present case we have an unsigned holograph writing testamentary in its nature. I think that it is irrelevant to the question of its validity that, if valid, it would have disposed of all that the writer is known to have possessed, or written at any particular date, or that it was found in any particular repository. It depends for its validity, if it is valid, entirely upon its heading—
“Sunnybank Alford
My Last Will Jessie Taylor”
I cannot regard this as an unexceptionable document connected with the alleged testamentary writing by the testator, and therefore as supplying the want of subscription of the document itself.
It is at best a superscription, for presumably it preceded the making of the document which was to follow. Indeed, whether it preceded or followed the making of the document to which it is prefixed, it was in effect superscription. And superscription cannot be regarded as any but a royal prerogative.
Moreover, such a preliminary announcement is no unequivocal proof of the finality of what follows.
But the equally fatal objection is that its
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The writing founded upon begins with the following words—“Sunnybank Alford My last will Jessie Taylor.” There follows a holograph statement of her testamentary wishes, which, as the Sheriff-Substitute has found, “appear to deal with every item of the testator's estate excepting a small sum of cash in the house and a proportion of rents current at her death.” The document is not dated, but there is a finding to the effect that in all probability it was written after September 1912, while Miss Taylor's death occurred on 25th February 1913.
I apprehend that if the words “My last will” and the signature had followed the testamentary directions no question could have been raised. The words would then have been construed as meaning “the above is my last will,” and I would have attached no importance to the fact pointed out by the respondents' counsel that the signature is in the same line with the words “My last will” and is not below it. Nor do I think would it have made any difference in such a case that the writing bore no date, and that there was no appointment of an executor. The date may be of importance when it is doubtful whether the deed was signed before or after marriage, but not generally where the will of an unmarried person is concerned. Even if it were otherwise, the fact that the property left was precisely what was disposed of by the settlement shows, apart from the parole evidence to which the Sheriff-Substitute refers in the finding from which I have partially quoted, that the document cannot have been executed very long before the testator's death. As regards an executor, the law will appoint one if the testator has not done so; and it is probable enough that this lady who wrote her own will should be ignorant that the distribution of her estate could not be effected except through the medium of an executor. Such an omission does not tend to throw any doubt on the document as a complete expression of her testamentary wishes.
Does it, then, make any difference that the words “My last will Jessie Taylor” precede and do not follow her testamentary directions? In my opinion in the circumstances of this case it does not. I construe the words in the position which they occupy on a single sheet of paper as being equivalent to a statement that the directions as to the distribution of her estate which immediately follow constitute her last will. This settlement is duly subscribed, and as there can be no question as to the identification of her testamentary wishes, constitutes a disposal of the whole estate of which she knew herself to be possessed. I have therefore come to the conclusion, differing from the Sheriff-Substitute, that the document, taken as a whole, validly disposes of her estate. In so holding I conceive myself to be simply applying to the circumstances of this case the well-known rule stated in MLaren on Wills, sec. 531. There is not the same difficulty in applying this rule in the present case as there would have been if the testamentary writings had been on different sheets of paper, as in some of the decided cases quoted in the footnote. The present case is extremely special, and can scarcely be an authority unless on circumstances which are substantially identical.
The question is a short one, depending upon (1) the construction put upon the declaration “My last will,” and (2) the identification of the will therein referred to.
Two constructions are put forward—the first that “My last will” means “this is the will I am going to make,” the other that it means “this paper is my last will.” I prefer the latter as the more reasonable. To the statement so made by the testatrix is appended her signature. It is subscribed. Therefore the case is not like those where the name of the testator appeared merely in gremio of the writing. I recognise that the later cases settle that without subscription a writing cannot per se be valid as a will. The law is contained in the cases of Skinner, Goldie, and Foley, cited by the Sheriff-Substitute, and I refer to Lord Low's and Lord Trayner's opinions in the last mentioned. There is here, in my opinion, compliance with the required formalities.
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The next question is whether there is room for doubt that the document is a completed will. If it is a mere scroll from which a will was afterwards to be made, it is of course not operative. This is, as was pointed out in Dunlop, the question to be decided. It is not necessary to recapitulate the findings in fact relating to the circumstances under which the present writing was found. The surrounding circumstances all point to its being, what it purports on the face of it to be, the last expression of the will of the testatrix. The fact that it was found in an envelope (though unclosed) with the indorsation “My will” is entirely consistent with this view. There is to my mind no reasonable doubt as to the identity of the will referred to. It is the universal settlement of her whole estate which with her own hand she wrote upon the same page of the paper. The respondents argued that there is no nomination of executors, no date, and during the original argument it was pointed out there is no full stop at the end. These circumstances do not, to my mind, lead to the conclusion that the will is not a complete expression of the intentions of the testatrix. Nor was it necessary that there should be a residuary clause, for there does not appear to be any residue. The writing is not a memorandum of what was intended to be a will. It is a completed will. The subscription may or may not have been added before or after the writing which follows it upon the page. I am content to assume that it may have been written immediately after the words “My last will.” These words, with the accompanying subscription, are, I am of opinion, a sufficient recognition by the testatrix of her will. I prefer to rest my judgment upon this rather than upon the doctrine of adoption. Suppose that the writing which follows the docquet had been on a separate sheet of paper in a sealed envelope which bore the indorsation “My last will,” or “What is contained herein is my last will,” with the subscription of the testatrix. In these circumstances it would have been in my view impossible to refuse to give effect to it. Yet then the docquet and subscription might have been written before the will, and the identity of the will might have been more open to doubt than is the case here.
I therefore think that, consistently with established principles, effect should be given to this will.
When the foregoing was written I was of opinion that there was no difference of opinion as regards the law, but only as regards its application. As regards some of the propositions laid down by those who take a different view, I am unable to concur. I reserve my opinion on these when they come up.
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In the present case all that we have to decide is whether the holograph writing printed in the appendix ought to be read as forming two separate documents, and if so, whether the first seven words, viz. “Sunny-bank Alford My last will Jessie Taylor” ought to be construed as meaning that the writer referred to and incorporated as part of her subscribed will the holograph but unsubscribed directions written below her signature. I think that there is at least a reasonable doubt as regards both questions, and I am not prepared to answer either of them in the affirmative. I am not satisfied that the words “Jessie Taylor” were intended to authenticate the words which preceded them or were other than descriptive of the person who was beginning to write out her will. Nor am I satisfied that the writer intended the words “my last will” to have the meaning and effect attributed to them by the appellants' counsel. The presumption that testamentary directions are incomplete and deliberative until they have been subscribed militates against the construction contended for. This presumption is founded, not upon any technical rule of law, but upon the ordinary understanding and practice even of rustics in this country. I am therefore of opinion that the judgment of the Sheriff-Substitute should be affirmed.
The Court pronounced this judgment—
“Dismiss the appeal: Affirm the interlocutor of the Sheriff-Substitute dated 12th July 1913: Repeat the findings therein, except the finding as to expenses: Of new refuse decree of declarator as concluded for, and decern, reserving the question of expenses.”
On 25th November 1913 the First Division found both parties entitled to expenses out of Miss Taylor's estate.
Counsel for Pursuers (Appellants)— Lippe. Agents— Dalgleish, Dobbie, & Company, S.S.C.
Counsel for Defenders (Respondents)— Chree, K.C.— Mitchell. Agent— Henry Bower, S.S.C.
