Scottish Court of Session Decisions

Peter Jolly Purves and others, trustees and executors of Mrs Jane Blacklock or Craw, first parties. Miss Mary Baird and others, legatees, second parties, Miss Annie Comrie, residuary legatee, third party, and Donald Blacklock, heir-at-law, fourthparty, brought a Special Case to determine whether the holograph will of Mrs Craw applied to a house left by her.

Mrs Craw died on 1st December 1917 leaving a holograph will and codicil in the following terms:—“I hereby revoke my former will. I have already given instructions about my interment. I wish £400 (pounds) to be given to my good friend Miss Mary Baird, or failing her sister Grace Baird, both of 17 Hatton Place, free of legacy duty, also my eight-day clock. £100 (pounds) to be given to Mrs Blacklock (my sister-in-law) of 66 Brunswick St., also free of legacy duty. £10 (pounds) to Miss Bella Gray in recognition of her devotion to her mother, my dear friend, also free of legacy duty. Mrs Brodie, 30 Sciennes Rd., to get all the things on the top of the bureau, also tea-caddy on top of bookcase. My rings on my left to Mrs Brodie, also bracelet on my arm. Miss Grace Baird to get rings on right hand, also my gold chain and appendages. My small work table (at my bedside) to Mrs Purves, 24 Howard Place, small table with china with contents above and below. Also bookcase and contents to her husband, my good friend, with boxes on top, also large china plate, also china cabinet with contents, also the things on top. All my pictures to Mr Purves, with 2 miniatures and brooch and china ornament, also silver candlesticks. Three old chairs to Mrs Purves. Three vases on mantelpiece with my three brooches to Miss Grace Baird, along with my bureau. The rent and taxes to be paid in the house I die in, and Miss Henderson to get the option of staying on. Also she gets all my other belongings in the house which she has got already in lieu of the small salary she has got from me. My dear friend Miss Annie Comrie of Stenhouse for the kindness she has to me I leave the residue of my property. Omitted on previous page: flower stand with contents to Mrs Brodie, and lace flounce (my own work) sewed on curtain to Mrs Purves, 24 Howard Place. Written 31st March 1917. 7 Roseneath Ter. Jane Craw (Mrs).

“3rd April 1917.

Codicil to my Will.

Omitted. Old-fashioned chest of drawers in bedroom to the aforesaid Mrs Purves, also my silver tea set and 6 dessert and 1 table spoon, silver, to Mrs Purves, also large flower-pot on floor in room. 6 dessert spoons to Miss Grace Baird. Residue of furniture to Miss Henderson. Mr Purves, 44 Queen St., trustee and executor. Miss Grace Baird, co-trustee. Jane Craw.”

Page: 21↓

The Special Case set forth—“2. The testatrix was at the date of her death possessed of moveable estate amounting in value to £266, 18s., of which £110, 19s. represented the value of her furniture, silver plate, china, and household effects, leaving £155, 19s. as the value of her other moveable assets, subject to payment of debts, estate duty, &c. She was also the owner of the house 25 Grange Road, Edinburgh, which according to the provisional valuation thereof was of a gross value of £900. … 4. All the legatees mentioned in the said will and codicil are strangers in blood to the testatrix, but the said Margaret Haggart or Blacklock is the widow of one of the testatrix's brothers, and the said Peter Jolly Purves is a relative of the first wife of the said John Craw, the testatrix's husband. The testatrix had no children. She was survived by a brother Richard Blacklock and a sister Mary Annie Blacklock, but by her said will and codicil she left no bequest to either of them 5. The first parties accepted office as trustees and executors under the said holograph will and codicil, and were duly confirmed as executors conform to testament-testamentar by the Sheriff of the Lothians and Peebles in their favour, sealed 8th February 1918. They realised two Commercial Bank' shares belonging to the testatrix, paid the Government duties and most of the testatrix's debts and funeral expenses, and delivered to the legatees to whom the same were bequeathed by the said will and codicil the household furniture, silver plate, china, and other moveable articles specifically bequeathed to them respectively. 6. The said pecuniary legacies amount together to £510. The testatrix was aware that her moveable estate amounted to about £266, 18s. So far as known the testatrix did not consult any law agent in regard to her will, and did not have any professional assistance in the preparation thereof. 7. The question has now arisen whether the said will and codicil are habile to convey the house 25 Grange Road, Edinburgh, to the first parties for the purposes thereof or to the said Annie Comrie. The said Annie Comrie does not dispute that if the said house falls to her as part of the residue of the testatrix's estate it does so subject to the payment of the pecuniary legacies bequeabned by the testatrix to the second parties in so far as the tesbabrix's moveable estate is insufficient to pay the same.”

The questions of law were—“1. Are the terms of the testatrix's will habile to convey her heritage? or 2. Is the fourth party, as the testatrix's heir ab intestato, entitled to the said heritable estate?”

Argued for the second and third parties—It was not necessary that there should be a direct conveyance of heritage. It was sufficient if the language of the will imported a conveyance of the heritage. The word “property” implied a conveyance of the heritage. “Property” was the word ordinarily used by laymen to describe heritage. If a testator declared his mind with respect to his “properby” or “esbabe,” it was reasonably certain that he meant to dispose of his heritable property if he had any—M'Laren, Wills and Succession, vol i, p. 333; Oag's Curator v. Corner, 1885, 12 R. 1162, 22 S.L.R. 784, per Lord Young at 12 R 1163, 22 S.L.R. 785. The present case was a stronger one than Smith's Executors v. Smith, 1918 S.C. 772, 55 S.L.R. 716 ( v. especially the opinion of Lord Guthrie at 1918 S.C. 780, 55 S.L.R. 720). There was a strong presumption against intestacy. All the pecuniary legacies were to strangers. From this fact it must be inferred that the testatrix did not wish her relatives to benefit, but if the heritage were held to be undisposed of estate, it would fall to the heir-at-law. Urquhart v. Dewar, 6 R. 1062, 16 S.L.R. 602: Bryden v. Cormack, 1913 S.C. 209, 50 S.L.R 76; and Woodard's Judicial Factor v. Woodard, 56 S.L.R. 214, were referred to.

Argued for the fourth party—The result of the decisions was that neither the word “residue” nor the word “property” necessarily implied that heritage was disposed of. If a testator were dealing with moveable property in the antecedent part of a will, the word “remainder” meant “remainder of moveable property.” The word “residue” was not generally applied to heritage in an estate consisting of both heritage and moveables unless there was a power to sell the heritage— Bell and Others v. Bell and Others, 1906, 14 S.L.T. 244, per Lord Ardwall at p. 246. The word “property” had a narrower meaning than the word “estate,” and it must be discovered from the antecedent clauses what the word was meant to cover— Urquhart v. Dewar ( cit.), per Lord President (Inglis) at 6 R. 1032, 16 S.L.R. 605; Crowe v. Cook, 1908 S.C. 1178, 45 S.L.R. 904, per Lord M'Laren at 1908 S.C. 1183, 45 S.L.R. 907. If the word “property” were coupled with the word “remainder,” or, as here, the word “residue,” the word “property” meant moveable estate. The clause containing the conveyance occurred amongst clauses dealing with moveables, and accordingly there was an inference that the conveyance was a conveyance of moveables— Woodard's Judicial Factor v. Woodard, and Bryden v. Cormack.