Scottish Court of Session Decisions

The Rev. Walter Scott and others, trustees of the late Miss Anne Scott, first parties; Mrs Louisa Scott Lawford or Duke, a niece of the testatrix, second party; and Herbert Fortescue Lawford and others, trustees acting under the antenuptial contract of marriage between Lieutenant—Colonel John Charles Duke and the second party, third parties, brought a Special Case to determine whether a codicil, dated 18th December 1912, to the testatrix's trust-disposition and settlement had been revoked by a subsequent codicil dated 5th November 1913.

The testatrix by her said trust-disposition and settlement conveyed the whole estate which should belong to her at the time of her death in trust to trustees, whom she directed in the third purpose to make payment of certain legacies, including one of £1000 to the second party, and in the sixth purpose—“I direct my trustees, as soon as convenient after my death, to invest in their own names a sum of £2500 in trust for the following purposes:—(First) My trustees shall pay the annual income or produce of said sum to the said Mrs Louisa Scott Lawford or Duke during her life, … exclusive always of the jus mariti and right of administration of any husband the said Mrs Louisa Scott Lawford or Duke has married or may marry, to whose control or for whose debts or engagements the same shall not be subject or liable. … (Second) In the event of the death of the said Mrs Louisa Scott Lawford or Duke, leaving issue, I direct my trustees immediately after her decease to pay the said sum to such issue of the said Mrs Louisa Scott Lawford or Duke, at such ages or times, in such shares, and in such manner and form as the said Mrs Louisa Scott Lawford or Duke shall by a writing under her hand direct and appoint, and failing such direction and appointment to and in favour of the lawful child or whole lawful children of the said Mrs Louisa Scott Lawford or Duke, or their issue, equally among them per stirpes, Declaring that if any of the said children or issue shall not have attained the age of twenty-one years at the death of the said Mrs Louisa Scott Lawford or Duke, or if the said Mrs Louisa Scott Lawford or Duke shall not have given directions in terms of the power hereinbefore conferred upon her, my trustees shall pay to such children or issue the income only of their respective shares until they attain the age of twenty-one years respectively, when the capital shall be payable, and such shares shall not vest until the terms of payment respectively arrive. (Third) In the event of the said Mrs Louisa Scott Lawford or Duke dying without issue and survived by her husband, the said Colonel John Charles Duke, my trustees shall pay the annual income of said sum of £2500 to the said Colonel John Charles Duke during his life, the capital of said sum in the event of my said niece dying without issue being divided on the death of the survivor of the said Mrs Louisa Scott Lawford or Duke and Colonel John Charles Duke among the persons who would have been entitled to succeed to my moveable estate if I myself had then died intestate.” The testatrix declared that the provisions of her trust-disposition

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and settlement so far as falling to females should be exclusive of the jus mariti or right of administration of any husband they might have married or might marry, and should not be payable to the trustee or trustees acting under any marriage contract which they might have entered or might enter into. The testatrix expressly reserved to herself “power to revoke these presents in whole or in part, and to supplement, alter, or amend these presents by any writing under my hand however informally executed.”

By the codicil dated 18 th December 1912, which was apart from the trust-disposition and settlement, the testatrix provided as follows:—“I, Miss Anne Scott of No. 17 Magdala Crescent, Edinburgh, considering that with reference to my trust-disposition and settlement, dated 31st March 1909, it is expedient and usual that in the event of my death I should appoint three trustees to act thereunder, instead of two as at present, therefore I do hereby nominate and appoint William Campbell M'Ewen, W.S., Edinburgh, to be a trustee under my said trust-disposition and settlement in addition to the persons therein named, and that to the same effect in all respects as if he had been named in my said trust-disposition and settlement as one of my trustees and executors; Considering further that in connection with the marriage of my niece Mrs Louisa Scott Lawford or Duke I agreed to bequeath to her the sum of £3400, which I did by trust-disposition and settlement dated 30th August 1900, and that by the said trust-disposition and settlement, dated 31st March 1909, I revoked the said last-mentioned trust-dis—position and settlement, making certain alterations with regard to said bequest of £3400 to my said niece, and that I am now desirous of putting matters in accordance with my original intention and arrangement, Therefore I do hereby revoke the bequest of £1000 to my said niece, as also the direction contained in the sixth place in the said trust-disposition and settlement of 31st March 1909 as to the sum of £2500, and do hereby leave and bequeath to my said niece the sum of £3400: And in exercise of the powers conferred upon me by the contract of marriage between Colonel John Charles Duke and my said niece, dated 19th September 1900, I do hereby, in the event of the death of my said niece, survived by her said husband, without issue of the marriage, direct the latter to have a liferent of the sum of £3000 therein referred to, the fee on his death to be paid in such manner as my said niece may direct by any writing under her hand, and failing such, amongst the persons who would have been entitled to succeed to my moveable estate if I myself had died intestate at the date of the death of the said Colonel Duke: And in the event of the said Colonel Duke predeceasing my said niece, and there being no issue of the marriage, 1 do hereby direct the said sum of £3000 to be paid to my said niece absolutely: Declaring that in the event of my said niece predeceasing me, survived by the said Colonel Duke, the latter shall have the liferent of a sum of £3000, the fee on his death to be paid in the same manner as is hereinbefore directed with regard to the first-mentioned sum of £3000: And further, I do hereby increase the annuity provided to my housekeeper Mrs Mary Anne Lloyd in the foresaid trust-disposition and settlement of 31st March 1909 to the amount of £35 in place of £25: And further, I bequeath to my servant Isabella Moodie, if in my service at the time of my death, a sum equal to two years' wages.—In witness whereof I have subscribed these presents, consisting of this and the preceding page, at Edinburgh on the 18th day of December 1912 before these witnesses—Helen Ogilvie Walker, residing at No. 6 Magdala Crescent, Edinburgh, and Agnes Paul, domestic servant at No. 17 Magdala Crescent, Edinburgh. Anne Scott. Helen Ogilvie Walker, 6 Magdala Crescent, Edinburgh, witness; Agnes Paul, 17 Magdala Crescent, Edinburgh, domestic servant, witness.”

By the codicil dated 5th November 1913, which was written on the trust—disposition and settlement, the testatrix provided as follows:—“I, Miss Anne Scott, of No. 17 Magdala Crescent, Edinburgh, do hereby make the following codicil to the foregoing trust-disposition and settlement, viz.— In the first place, I revoke the legacy of £100 to Mrs Edith Lawford, now deceased, and her issue: In the second place, I bequeath the following additional legacies (first), to John Playfair, M.D., 5 Melville Crescent, Edinburgh, the sum of £100; (second), to Cosmo Scott and Ian Scott, the children of my nephew James Scott, the sums of £100 each; (third), to each of my trustees, the Reverend Walter Scott and William Keith Aikman, W.S., the sum of £100; and (fourth), to my cook Isabella Moodie, in the event of her still being in my service at the time of my death, the sum of £25, all to the same effect as if said legacies had been directed to be paid by the fourth purpose of my said trust-disposition and settlement, along with the other legacies directed to be paid by that purpose: And except in so far as hereby altered, I confirm my said trust-disposition and settlement in all respects, and provide that it and this codicil shall be read and construed together as forming one document.—In witness whereof these presents, written by William M'Lennan, clerk to Messieurs Elder & Aikman, W.S., Edinburgh, are subscribed by me at Edinburgh on the 5th day of November 1913, bafore these witnesses, Mary Anne Lloyd, housekeeper, and Elizabeth Pollock, housemaid, both at 17 Magdala Crescent aforesaid. Anne Scott. Witness Mary Anne Lloyd, witness Elizabeth Pollock.”

The Case set forth—“1. The late Miss Anne Scott, who resided at 17 Magdala Crescent, Edinburgh, died on 14th March 1915, leaving the following testamentary writings, viz.—(1) trust-disposition and settlement, dated 31st March 1909; (2) separate codicil, dated 18th December 1912; (3) codicil written on the said trust-disposition and settlement, dated 5th November 1913; (4) holograph separate codicil, dated 5th November 1913; and (5) and (6) two holograph lists of specific legacies, dated May

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1914, contained in an envelope addressed ‘List of things I wish divided by Mrs E. A. Gillett and Mrs J. C. Duke, with approval of trustees.’ …

2. By the said antenuptial contract of marriage the said John Charles Duke made certain provisions in favour of his then intended spouse. On the other part, the second party (first) bound and obliged herself and her heirs, executors, and representatives, immediately upon the solemnisation of the marriage, to pay to the trustees nominated under the contract the sum of £2000, (second) assigned, disponed, and conveyed to the said trustees any share, title, estate, and interest to which she might acquire right as a successor through her aunt, the said Miss Anne Scott, upon the death of the latter, but that only to the extent of a sum of £3000. The said sums of £2000 and £3000 are referred to in the said contract as ‘the wife's trust fund,’ and it was directed that it should be held for the following purposes, namely—(1) payment of the expenses connected with the trust; (2) payment of the free income to the second party during her lifetime; (3) upon the death of the second party, for payment of the free income of £1000 of the wife's trust fund to the said John Charles Duke during his lifetime; (4) payment of the capital of the wife's trust fund to the children of the marriage; the fifth purpose, inter alia, provided as follows:—‘Failing a child or children of the said intended marriage or issue thereof, or of their all dying before the term of payment of their shares, the wife's trust fund shall be to the extent of the said sum of Two thousand pounds or the property or investments for the time representing the same (subject always to the foregoing liferent provision in favour of the said John Charles Duke) be paid, conveyed, or made over to the said Miss Louisa Scott Lawford, her heirs and assignees whomsoever, and to the extent of the said sum of Three thousand pounds or the property or investments for the time representing the same be paid, conveyed, or made over in such way and manner as the said Miss Anne Scott may direct by any writing under her hand, and failing such writing shall be paid, conveyed, and made over to her nephews and nieces and the issue of any predeceasing nephew or niece equally per stirpes who may be alive at the date of the death of the said Miss Louisa Scott Lawford, should she die without leaving children or issue thereof surviving her, or at the date of the failure of such children or issue should none of them take a vested interest under these presents.’…

6. Of the above-mentioned testamentary writings the trust—disposition and settlement and the codicil thereon dated 5th November 1913 were prepared by and remained in the custody of Messrs Elder & Aikman, W.S., from the date of execution to the date of the truster's death; the separate holograph codicil of 5th November 1913 also remained in the custody of Messrs Elder & Aikman from the date of execution until the date of the truster's death; the separate codicil of 18th December 1912 was prepared by and remained in the custody of Messrs J. & A. F. Adam, W.S., from the date of execution until the date of the truster's death, and the two holograph lists remained in the truster's own custody until the date of her death. The truster did not inform Messrs Elder & Aikman that she had executed the separate codicil of 18th December 1912, nor did she inform Messrs J. & A. F. Adam that she had executed the codicil dated 5th November 1913. The said antenuptial contract of marriage was prepared by Messrs J. & A. F. Adam, and has all along been in their hands.”

The first parties contended that the provisions of the codicil dated 18th December 1912, in so far as inconsistent with the terms of the trust-disposition and settlement, were revoked by the codicil dated 5th November 1913, written upon the said trust-disposition and settlement; that accordingly the said codicil dated 18th December 1912 was revoked in so far as (1) it revoked the bequest of £1000 to the second party and the directions contained in the sixth purpose of the trust-disposition and settlement as to the sum of £2500, and (2) it bequeathed to the second party the sum of £3400. They accordingly submitted that they were bound to make immediate payment to the second party of the sum of £1000 bequeathed to her by the third purpose of the trust disposition and settlement, and to hold the sum of £2500 on the trusts mentioned in the sixth purpose thereof.

The second and third parties contended that the provisions in favour of the second party in the codicil dated 18th December 1912 fell to be read in place of and as substituted for the provisions in her favour in the said trust-disposition and settlement, that it was not revoked by the codicil of 5th November 1913, and that the first parties were bound to make immediate payment to the second party of the sum of £400, and to the third parties of the sum of £3000.

The questions of law were—“(1) Are the first parties bound to make immediate payment to the second party of the sum of £1000 bequeathed to her by the third purpose of the said trust-disposition and settlement, and to hold the sum of £2500 on the trusts mentioned in the sixth purpose thereof? or (2) Are the first parties bound to make immediate payment to the second party of the sum of £400, and to the third parties of the sum of £3000?”

Argued for the first parties—The effect of the codicil of 5th November 1913 was to revoke the codicil of 18th December 1912 in toto, or alternatively in so far as that codicil was inconsistent with the trust-disposition and settlement. The codicil of 5th November 1913, written on the trust-disposition and settlement, referred to the “foregoing” trust-disposition and settlement and confirmed it. The result was to make the trust-disposition and settlement operative as from the date of the codicil of 5th November 1913, and as the trust-disposition and settlement revoked all former testamentary writings the codicil of 18th December 1912 was revoked. This was plainly the intention of the testatrix, and the confirmation

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of the will in the codicil of 5th November 1913 was not a confirmation of her testamentary writings generally but of a particular specified document which was only one of these writings, viz., the trust-disposition and settlement. That was clear from the use of the word “foregoing”; from the bequest to “each” of the trustees who were there nominated in the trust-disposition and settlement, and did not include the trustee nominated in the codicil of 18th December 1912; from the provision that the codicil of 5th November 1913 and the foregoing trust-disposition and settlement were to be read as one deed, no mention being made of the codicil of 18th December 1912; and from the fact that the legacy to Isabella Moodie after having been dealt with in the codicil of 18th December 1912 was again dealt with by the codicil of 5th November 1913. The case was on all fours with Mellis v. Mellis's Trustee, 1898, 25 R. 720, 35 S.L.R. 552. English and Irish decisions were relative to a system of conveyancing different from the Scottish in which the questions of probate and interpretation was dealt with by different courts. Further, the requisites of attestation were different in Scotland from those in England, and the English cases merely set up a canon of construction subject to definite limitations. Stoddart v. Grant, 1852, 1 Macq. 163, differed from the present case, for in it there were no words of revocation and no inconsistency between the deeds. Crosbie v. M'Doual, 1799, 4 Ves. Jun. 610, was not in point, for the words were not so definite as in this case, and the codicil merely deleted from and did not add to the will as in the present case. In re Steele, 1868 L.R., 1 P. & D. 575, turned upon the English Wills Act 1836 (1 Vict. cap. 26), section 22. In Green v. Tribe, 1878, L.R., 9 Ch D 231, the words were different, as also in Follett v. Pettman, 1883, L.R., 23 Ch. D. 337. The decision in M'Leod v. M'Nab, [1891] AC 471, was in favour of the first parties. Confirmation of the will in a codicil no doubt generally meant confirmation of the whole testamentary writings, but that rule was subject to limitations— e.g., in re De la Saussaye, 1873, 3 P. & D. 42; Burton v. Newbery, 1875, L.R., 1 Ch D 234; Farrar v. St Catherine's College, Cambridge, 1873, L.R., 16 Eq. 19. The contention of the second and third parties resulted in an actual revocation of the trust-disposition and settlement, though it was confirmed by the codicil of 5th November 1913. Best v. University of Edinburgh, 1880, 8 R. 66, 18 S.L.R. 45, was also referred to.

Argued for the second and third parties—There being no express revocation of the codicil of 18th December 1912 the onus was on the first parties to show that the testatrix intended to revoke that codicil, and this had not been discharged— Stoddart v. Grant ( cit.). The obvious intention of the testatrix was to confirm her whole testamentary writings, including the codicil of 18th December 1912, and she omitted to refer expressly to the codicil of 18th December 1912 in her confirmation, because the agents who prepared the codicil of 5th November 1913 were unaware of the codicil of 18th December 1912. Further, the testatrix, when she meant to do so, revoked a bequest expressly as she did in the trust-disposition and settlement and the codicil of 18th December 1912. The English and Irish rule was in favour of this contention— Crosbie v. MDoual ( cit.); Green v. Tribe ( cit.), Follett v. Pettman ( cit.); in re Vyvyan, 1883 W.N. 47; Browne v. Broivne, [1912], 1 I.R. 272; M'Leod v. M'Nab ( cit.); Jarman on Wills (6th ed.), vol i, p. 198–9; in re Steele ( cit.); Theobald on Wills (7th ed.), p. 64. Mellis' case ( cit.) was not in point, for there the question was one of reviving a dead document, not of killing a live one, as here. But in any event it was consistent with the English cases— Bankes v. Bankes' Trustees, 1882, 9 R. 1046, 19 S.L.R. 785; Bell's Lectures, p. 982.

At advising—