Scottish Court of Session Decisions

LORD PRESIDENT (Clyde).—The whole of the document headed "Memorandum for Will," and of the codicil subjoined to it—excepting only the signatures to the memorandum and codicil respectively—is typed by means of a typewriting machine. The parties agree (in article 1 of the special case) that the signatures are holograph of the subscriber—that is to say, that they are written by his own hand and in his own handwriting. They are also agreed (in article 3 of the special case) that, as matter of fact, the subscriber personally operated the typewriting machine for the purpose of committing the memorandum and codicil to paper. Between the main body of the typed memorandum and the written subscription there is a docquet, also typed, "accepting" (i.e., adopting) the preceding part of the memorandum "as holograph," and

the codicil exhibits a similar feature. These docquets are covered by the agreement of the parties in article 3 referred to above.

The question is whether, in these circumstances, the memorandum and codicil constitute a valid testamentary writing. It is common ground that—using Lord Wensleydale's words in Anderson v. Gill —"he who sets up a will must prove it to be a will executed with all the formalities required by the Scots law, either as a holograph will, or a will attested by witnesses."

The formalities necessary to the validity of a will which is not executed in accordance with the statutory solemnities are (1) that it shall be subscribed by the testator at the end of it; and (2)—using the words of Bell's Dictionary (7th ed., p. 509)—that it shall be "a deed written with the granter's own hand which, on account of the difficulty with which the forgery of such a document can be accomplished, is held to be valid in law without witnesses."

The broad contention in favour of the validity of the memorandum and codicil, as a will, rests on the extent to which—owing to the improved efficiency of typewriting machines—typescript has superseded manuscript in ordinary use. The argument is that, provided the author of a document produced by operation of a typewriting machine is proved or admitted, as matter of fact, to have acted as his own typist in so producing it, the document should be regarded in law as being as truly holograph of him as if it had been actually produced with his own hand holding a pen or other style, and in his own handwriting. It is said that—subject to the above proviso—typewriting and handwriting have become equivalents, and that there is accordingly no good reason why the law should deny to a document proved to have been typed by its author the formal quality which it attributes to a document proved to have been written by its author with his own hand and in his own handwriting.

Before dealing directly with the merits of this question it may be convenient to refer to two matters which were pressed in the debate—if only for the purpose of putting them aside. In the first place, it was pointed out that (as is set forth in the special case) the subscriber's handwriting had deteriorated for some years before his death, and that, at the time when he typed the memorandum and codicil, he was in the habit of using a typewriting machine for all documentary communications. I do not regard this circumstance as material, because to do so would be to violate what Lord President Inglis in Maitland's Trustees v. Maitland called "the fixed rule of the law of Scotland that a writing shall not be esteemed probative unless it is tested in terms of the statute, or is among the privileged writings." It cannot help to make a writing privileged according to those rules that the author of it is not physically able to comply with the formalities required for that purpose. In the second place, stress was laid, in the argument presented to us in support of the memorandum and codicil as constituting a valid testamentary writing, on the intention of the subscriber. It was urged that there was here a

clear intention on his part to make a will. But the question is not whether the subscriber meant to make a will—it is more than likely that he did—but whether he has complied with the formalities which are necessary by the law of Scotland to make a will valid. The relevancy of intention in this connexion was considered and rejected in Macdonald v. Cuthbertson .

A probative document is one which, in respect that it complies on the face of it with the prescribed legal formalities, is held to prove the verity of the legal actus expressed in it as the genuine actus of its author. It is important to keep in mind that, in speaking of the formalities required for the purpose of the authentication of a deed, what is meant is something in the form, or shape, or expression of the deed itself, which (when presented to the intelligent eye) provides a legal test of its authenticity. The formalities, in short, are intrinsic, not extrinsic, to the deed. They are, so to speak, the legally recognisable features of honesty and genuineness which the deed carries about with it—on its face—into whosesoever hands it may pass. Thus a will, in the execution of which the statutory solemnities have—ex facie of it—been observed, makes faith, unless it is challenged on the ground that the solemnities were not truly observed, for instance, on the ground that the attesting witnesses were not present when the author of the deed signed it, or did not hear him acknowledge his signature. And again, a will in the execution of which the statutory solemnities have not been observed may be admitted, by privilege of law, to the class of probative documents if—ex facie of it—it bears to be written (either wholly or in its essential parts) in one and the same handwriting as the subscription, being the handwriting of the subscriber. In both kinds of will the essence of the prescribed formalities consists in the establishment of fixed and definite means of identifying (from evidence provided by the face of the deed itself) the actus expressed in the document with the authoritative personality of its author—in the one case, by the solemnities of attestation; in the other case, by the expression of the will in the handwriting of the author himself. In the latter case all that the intelligent eye requires to do in order to identify the document with its author is to identify the handwriting on the face of the document with the author's ordinary handwriting. Once that is done, the will becomes—ex facie of it—real evidence of its genuineness.

I did not understand it to be seriously maintained that the requirement of authentic handwriting in the most important part of a will—namely, the testator's signature—could be met by a typed signature, albeit proved by oral testimony to have been typed by the testator personally. On the contrary, when it was suggested from the Bench that what I have called the broad contention might—if logically applied—result in setting up a typed subscription as holograph of the typist, the suggestion met—I thought very properly—with an unfavourable reception, and it seemed to be admitted that the broad contention was inapplicable to that part of a will which consists in the subscription. The reason is to be found in the nature of things; the only proof worth having of the genuineness

of a subscription is that which is provided by the individual characteristics and peculiarities of the handwriting in which the subscription is made. These characteristics and peculiarities are the link on which the identification of the subscription with the personality of the subscriber depends. This indispensable link cannot be provided by a typed signature, because the typewriting machine operates independently of any such characteristics and peculiarities on the part of the typist.

Again, it has long been regarded as a settled point that a docquet adopting a non-holograph document as holograph must, like the subscription, be written by the adopter with his own hand and in his own handwriting. The authorities are numerous, but it may be sufficient to refer to Maitland's Trustees v. Maitland (esp. per Lord President Inglis at p. 88); Gavine's Trustees v. Lee (esp. per Lord President Inglis at p. 452, and Lord Deas at p. 454); and Harvey v. Smith (esp. per Lord President Kinross at pp. 519, 520). The reason for this requirement is the same as that which has been seen to apply to the subscription, namely, that the authenticity of the handwriting in which the adoption is expressed—once that authenticity is disclosed to the intelligent eye—proves, ex facie of the document, that the adoption is the act of the person who subscribed it. In such a case the clause or docquet of adoption may truly be said to be the operative part of the whole will, the non-holograph part being in much the same position as a paper apart imported or incorporated in it. The subscriber of the memorandum and codicil in the present case evidently understood—rightly or wrongly—that the memorandum and codicil (being typed by himself) could not be held to be privileged as holograph, for he endeavoured to adopt them as such. But he did not realise that, to be effectual, the docquets or clauses of adoption must, like his signature, be written with his own hand and in his own handwriting. However that may be, they are worthless, and they played no part in the discussion of the case.

If the virtue justly attributed to the use of the testator's own handwriting is essential for the purpose of identifying his subscription or a docquet of adoption as his own, it is not easy to see how (apart from any such docquet) that virtue can be dispensed with as regards any of the essential parts of the will.

For the purposes of the identification or authentication of a deed, type is an impersonal and colourless medium, whoever may be the operator of the typewriting or printing machine; and typed documents, such as the Memorandum for Will and codicil in the present case, are destitute of any formality—anything in their form, shape, or expression—which, when presented to the intelligent eye, goes any length at all in the direction of proving their authenticity. On the other hand, the style of handwriting is intimately related to the individuality of the author of the document, and provides (intrinsically of the document itself) the most reliable evidence of his identity and of the genuineness of the actus which is expressed with his own hand. There is no virtue in typescript,

or in any kind of mechanical typography for these purposes; and it is therefore, in my opinion, quite impossible to regard handwriting and typewriting as equivalents in this connexion. With the former it is possible to meet the formalities required to make a valid testamentary document as these are laid down by all the institutional writers, and the protection against risk of error and fabrication, which it is the avowed object of those formalities to secure, can be achieved. With the latter the formalities cannot be met, whether the typist be the would be testator or his amanuensis, and no materials exist for the setting up of the memorandum and codicil in the present case as a probative document, except what may be provided by extrinsic parole testimony; for the agreement of parties in Article 3 of the case can come to no more than that.

It is not, in my opinion, competent or possible to set up a document as probative merely on extrinsic parole evidence with regard to its origin and history. Parole evidence on such a subject is fallible, and may even be interested; and if it were enough to set up the memorandum and codicil in the present case that witnesses, speaking from recollection, say they saw them personally typed by the subscriber, the distinction between a probative document and an oral nuncupation would, for all practical purposes, be lost. There is, indeed, no comparison or analogy for purposes of authentication between the real evidence of the handwriting in which a document is expressed and parole testimony to the effect that a typed document was in fact typed by the subscriber of it. Suppose that it were proved (or admitted by the parties interested) that a will was typed by the testator's amanuensis to the testator's dictation, was read over by him, and then signed. I do not think it could be said that the parole testimony in such a case would be any less convincing than it is in the present; yet obviously it could not avail to set up the will. The reason why it could not is the same as that which, in my opinion, compels a negative answer of the question put in this special case; namely, that, if a testamentary document in the execution of which the statutory solemnities are not observed is to be admitted as a valid will, it must be written (either in whole or in its essential parts) with the hand and in the handwriting of the subscriber, whereby—ex facie and intrinsically of it—it is capable of being identified with the personality of the subscriber.

LORD JUSTICE-CLERK (Aitchison).—I agree with the Lord President. If the question in the case was whether the document headed "Memorandum for Will" left by Mr M'Beath and found in his repositories was intended by him to be an expression of testamentary intention, the question would admit of only one answer. There can be no doubt that Mr M'Beath intended the "Memorandum for Will" to receive effect as if it were a formal will. But the question is a different one. It is whether this document, admitted to have been typewritten by Mr M'Beath and to have been signed by his own hand, is a valid will by the law of Scotland. Does it conform to what the law requires of a valid testamentary writing ? A will must be either holograph or tested. The document here not being tested, the question is—Is it holograph ?

It was conceded by counsel for the beneficiaries that the ordinary and usual meaning of a holograph document is a document written in the hand of the granter himself, either in whole or in its essential parts, and we were referred to no instance of a document being held to be holograph which was not so written. But it was maintained that, although this was the usual and ordinary meaning of the term in the acceptation of lawyers, any document might be called holograph which in fact was made by the granter, the essential thing being that the document was made by the hand of the granter and not by the hand of another. This is a novel proposition, and no authority was adduced in support of it. The question is whether it can be accepted as a true definition of holograph.

Antecedently, there is no reason why a testator's testamentary intention should not be expressed in any form of writ which bears his signature. But the practice of four centuries, ever since the Act of 1540, cap. 117, has been to require subscription by the granter of the writ (or a notary where the granter cannot write) and subscription by witnesses, except in such case as the writing is holograph of the granter. The purpose of this requirement is to secure proper authentication, so that there may be certainty, and the avoidance of disputes, and a safeguard against forgery and fraud. The essence of attestation is that the granter, by signing in the presence of witnesses or acknowledging the signature as his, thereby acknowledges the writ as his writ, his subscription, which is his acknowledgment, being attested by the subscription of witnesses. The same idea of authentication underlies the privilege that attaches to holograph writings:

"They are held equivalent to attested writings, in affording proof at once of authenticity and of deliberate engagement"

—Bell's Prin., sec. 20. A holograph writing, although requiring to be set up on challenge, is self-authenticated, and it is so because, ex facie of the writing, the signature may be compared with the body of the writing. Lord M'Laren, in his dissenting opinion in Macdonald v. Cuthbertson, recognised this feature of self-authentication as the essential requisite of a holograph will. He said (at p. 108):

"The will we have under consideration fulfils this requisite of a holograph deed: that every word in it authenticates itself, because it is in the handwriting of the granter."

The law is stated by Professor Bell in these words (Com., (7th ed.) vol. i., p. 340):

"Solemn deeds are of two kinds—(1) such as are written by another hand than that of the granter, and for proof of the authenticity of which the law trusts to the attestation of witnesses; and (2) holograph deeds written wholly, or in the principal and binding parts, by the granter, in which the proof of authenticity is by comparison of handwriting."

The same reason for the privilege that the law accords to holograph writings is stated by Lord Cowan in the case of Callander v. Callander's Trustees (at p. 301) as follows:

"Clear it is that holograph writings do not fall within the statutory rules, because, from their very nature, no risk of a forged signature, apart from the rest of the deed, exists, and because what has been written by a man's own hand must

have had his deliberate assent."

I italicise these words because in this passage Lord Cowan puts his finger upon the essential feature of a holograph writing, viz., that the signature and the body of the writing (or adopting words in the writing) are in the same hand. The moment the body of the writing ceases to be in the hand of the granter and becomes typewritten without written adopting words in the hand of the granter, the holograph character of the writ disappears.

I have stated these rules affecting authentication of writs because it is with reference to the law of authentication that the question in this case must be tested. It is, I think, plain that, if typescript can be substituted for manuscript in a holograph writing, there can no longer be any evidence of authenticity from the comparison of the signature with the body of the writ. The rule of law that a man's will must be authenticated by the subscription of witnesses, or by writing in his own hand in the ordinary meaning of writing, is clear and well settled, and it has led to great certainty in the making and proving of wills. On to this simple and salutary rule it is now proposed to graft a new rule, namely, authentication of wills by the parole testimony of two witnesses who shall not subscribe the writing but who shall depone orally to the signature of the testator, and also to the act of typewriting, and presumably also to the substance of what is typewritten. This appears to me to be a startling innovation, and it is not surprising that no judicial authority was quoted in support of it, nor any analogy furnished from any modern system of law or from the law of Rome. I respectfully think that it is subversive of the whole conception of a holograph writing as hitherto understood.

It is impossible to say when holograph writings came first to be recognised in the law of Scotland, but it is clear enough that it was the individual character of the hand that placed them in the class of privileged writings. Thus, Lord Stair in his title "Probation by Writ" (Inst., IV. xlii. 6) says:

"Holograph writs subscribed are unquestionably the strongest probation by writ, and least imitable. … Writs are accounted holograph where large sentences are written with the party's hand, although not the whole writ."

Again, Professor Bell in his Commentaries (Vol. I., p. 341) says, with reference to holograph writings:

"The uniformity of handwriting, so difficult to be imitated throughout a whole deed, has been supposed to furnish a safe substitute for the proofs afforded in attested writings by the attestation of witnesses; and this both in respect of authenticity and of solemnity."

And similarly, Mr Erskine (III. ii. 22) puts the matter thus:

"Holograph deeds, that is, deeds written with the granter's own hand, are valid without witnesses because one's handwriting through a whole deed is harder to be counterfeited, and therefore less exposed to forgery, than the bare subscription of his name and surname."

In these passages the emphasis is laid upon the individual character of the hand. As was said by Lord Mackenzie in Turnbull v. Doods (at p. 902):

"Handwriting is known very much as a person's face is known."

The correct meaning of holograph is

autograph. "It is of no consequence whether those parts of a document which are not autograph of the subscriber are written by somebody else, or whether they are printed or lithographed. It is not holograph in the one case any more than in the other"—Macdonald v. Cuthbertson (per Lord Kinnear at p. 108).

Once a holograph writing is denuded of its individual character, as it will be if the body of the writ may be typewritten (excepting the case where the words "adopted as holograph" are added in the handwriting of the granter, thereby authenticating it), it ceases to be holograph in any reasonable sense of the term. We are left with a signature that is individual and with a writ which is not individual, but which might have been typed by anyone having access to the machine. The basis of comparison between the signature and the writ (or the adopting words) disappears, the writ ceases to be "least imitable," which was the feature assigned to it by Stair, and there is no longer the uniformity of handwriting which, according to Bell and Erskine, gives to the writ its authenticity. In other words, the essential holograph character of the writ is destroyed. Instead of the individual character of the hand we are left with the parole testimony of witnesses, who may be interested to set up a particular deed and upon the honesty of whom there may be no effective check. A departure of this kind from the hitherto recognised practice is calculated to introduce uncertainty into the law where the law should be clear and certain. It will tend to make the fabrication of a fraudulent will easier; the task of the impetrator will be sensibly lightened.

It was pressed upon us that the Courts ought to show favour to testamentary writings, and that legal formalities should not stand in the way of their being given effect to. I think the answer is that the relaxation of the rules of authentication of wills may have the very opposite effect to what is intended. If it is to go out as the solemn decision of this Court that a man may typewrite his own will and sign it, and that it is a good will by the law of Scotland, the effect may well be to defeat testamentary intention in a great many cases. Years may elapse between the making of the will and the testator's death. Witnesses to the typewriting may die, or be unavailable, or their recollection may be faulty after an interval of time, and the unauthenticated typewritten will may thereby fail from want of proof. On the other hand, the existing formalities of authentication by attestation or holograph writing as hitherto defined are simple and readily understood, and they do not defeat, except in very isolated cases, the expression of testamentary intention.

Once it is affirmed that a holograph will may be made on a typewriter by the maker of the will, I do not see how it is possible to stop short in the application of this new conception of holograph writing. If typescript is manuscript, then a typewritten missive of sale relating to heritage, typed by the signatory is by analogy a manuscript missive of sale relating to heritage, and is effectual; and the same will apply to every form of deed whether inter vivos or mortis causa. As was pointed

out by Lord President Inglis in Macdonald v. Cuthbertson (at p. 104):

"The forms prescribed by the law of Scotland for the attestation of wills are the forms prescribed for the attestation of all written instruments. We have no statutory rules peculiar to wills as they have in England; all the rules regarding the attestation of written instruments with us are equally applicable to testamentary writings and to deeds inter vivos."

I dissent from the view that the existing solemnities relating to wills are archaisms which should be discarded. On the contrary, I think they are valuable safeguards which the experience and the caution of generations of lawyers have insisted on as the best means of securing that effect shall be given to testamentary intention. For these reasons I agree with your Lordship in the chair that this departure from the recognised practice should not be sanctioned, and that the question in the case should be answered in the negative.

LORD HUNTER .—The question in this case is whether a typed document, signed by the late James M'Beath, is to be treated as a valid testamentary writing, effectually disposing of the estate left by him. The document is headed "Memorandum for Will," and is dated 11th October 1932. The last clause, however, is in these terms:

"The above has been typed by, and accepted as holograph by, me, and is to be treated as a formal will in the event of my dying before having executed one."

On 5th May 1933 an addition to the document, also typewritten, was made altering one of the provisions, to which there is appended a statement:

"Accepted as holograph, having been typed by myself."

Mr M'Beath was a retired bank agent. Owing to deterioration in his physical condition his handwriting, during two or three years prior to his death, became so bad as to be, on many occasions, indecipherable. He therefore took to using a typewriter, and, in 1932 and 1933, invariably used a typewriter for all communications in writing. Admittedly the document was typewritten by Mr M'Beath.

According to the law of Scotland any person of sound mind may, subject of course to the recognition of legal claims, dispose by deed of estate left by him at death. If the Court are satisfied—and in this case we are bound, by the admissions of parties, to be satisfied—that every word, and every letter in every word, of a signed document bearing to be a will has been formed by the person who appends his signature, is there any reason why effect should not be given to it as a valid testamentary writing ? It is contended that a proper view of what has been recognised as essential to the due authentication of documents necessitates our refusing recognition to what is clearly a genuine expression of testamentary intention. The law which governs authentication of deeds is purely statutory. As Lord M'Laren points out in his opinion in Macdonald (at p. 107):

"It is sufficiently evident from the statements of our institutional writers, and from history, that prior to the statutes with which we are familiar, the law recognised no broad distinction between deeds written by the granter himself and those written for him

by another hand. In either case, all that was necessary as matter of solemnity was that the deed should be signed and sealed, or sealed without being signed; and although for greater security it was usual to call in witnesses, these were not necessarily instrumentary witnesses. They were not required as matter of solemnity to subscribe the deed, nor was it necessary that their names should be inserted in the deed."

The Act 1681, cap. 5, made a substantial change upon practice, and enacted certain requirements that are essential to probative deeds. The Act applies to deeds, whether inter vivos or of a testamentary character. It makes special provision for the writer of the deed and the testamentary witnesses to the signature of the granter being named. Unless so named, they are not probative witnesses. They have to see the granter sign or get an acknowledgment from him of his signature. Nothing is said as to holograph deeds, but such deeds have always been treated as not affected by the provisions of the Act. The explanation for this is probably that given by Lord M'Laren in the opinion to which I have referred. His Lordship says (at p. 107):

"Apparently just because the statute speaks of the writer and witnesses, its operation has uniformly been limited by authority and practice to the case where the deed is written by a hand other than that of the granter; and I take it that the distinction between deeds holograph and deeds not holograph means nothing more than this: that the one is the case of a deed written by a clerk's hand and falling under the statute, and the other includes all deeds which are not of that description."

That view was, no doubt, expressed in a dissenting opinion, but, so far as I can discover, it is not in conflict with anything said by the judges who formed the majority. Unless it is a correct explanation for the exclusion of holograph deeds from the operation of the statute, I do not know what substituted explanation should be given. Merely to say that it is more difficult to forge a whole deed than a signature would afford no justification for the Court excluding from the operation of the statute deeds that are expressly included.

It may well be that at the time when the Act was passed, and even at the time when the decision in Macdonald was pronounced, the word holograph was understood to mean a writing by pen employed in the hand of the writer. Typewriting even at the latter date was not in general use, and the employment of a typewriter in place of a pen may have been almost unknown. If, however, the Act applies to a deed prepared for the granter by another and not to one prepared by himself, there would appear to be no good ground for holding that what a man has written with a pen is not affected by the provisions of the Act of 1681, while what has been admittedly typed by him and what he has expressly indicated should be treated as holograph of him is affected. In both cases, where a deed is proponed as being entirely the work of the granter, and therefore excluded from the Act, the onus is rightly placed upon him who claims exemption from the statutory formalities. In Anderson v. Gill it was held that the proponer of a deed, which he

alleged to be holograph of a deceased person, does not discharge the onus upon him by establishing that it is all in the same handwriting as the signature, which is apparently that of the deceased. He must establish that the deed is "holograph of the testator." The onus of establishing that the actual typing was done by the person who signed the document would be not less difficult of discharge than in the case of a document written by hand. I do not know that it would be easier for a dishonest person to get evidence that a document had been typed by the person whose name is appended to the document, when in fact it was not so typed by him, than to make a skilful forgery of a simple will.

In his Lectures on Conveyancing Professor Bell says (vol. i., p. 79) that "although the law has introduced certain formalities of execution in order to prevent parties from being entrapped into transactions, these formalities are not intended as a restraint upon parties who wish to dispense with them." Accordingly we find, particularly in connexion with testamentary writings, that the tendency of modern decisions has been against such an application of technical rules as to authentication as would manifestly prevent the clear intention of a testator receiving effect. Thus a document has been sustained as holograph, and therefore valid, if the material parts are in the handwriting of the person who signs. If a formally executed settlement directs that an informally executed deed should receive effect, this is held equivalent to adoption of the informal deed—see Gillespie and Inglis v. Harper . Further, the mere presence in a document of the words "adopted as holograph" in the handwriting of the person signing the document is held to render the document valid, although the formalities connected with the authentication of probative deeds have not been observed. The words "adopted as holograph" do not make the deed holograph. The recognition of their effect as validating the deed would appear to me to be a much greater departure from strict adherence to the statutory provisions than the recognition as holograph of what is in fact proved to have been typed by the granter. The clause in this deed with which we are dealing is clear evidence of the granter's desire that no technical consideration should stand in the way of what he has typed being treated as holograph. If, therefore, I were wrong in the view that proof of personal typing by the granter takes the deed outwith the provisions of the Act 1681, I should consider that recognition of the present deed was no greater departure from a strict application of the statutory provisions than has already been sanctioned. In my opinion the question should be answered in the affirmative.

LORD ANDERSON .—Testamentary writings are, by our law, privileged and favoured. The law, as I understand it, is satisfied as regards the validity of such writs if two conditions are fulfilled—(a) that the document is genuine; and (b) that testamentary intention is intelligently expressed. These two conditions have been satisfied with reference to the two deeds mentioned in the case—it is admitted that every word of the deeds was typed by the granter, and that the manuscript signatures

are genuine; and it is not disputed that the deeds intelligently express testamentary intention.

In these circumstances it is somewhat startling to have it seriously maintained that the two writs, so far as legal effect is concerned, are but waste paper. This, however, is the contention of the third parties, and they formulate it thus:

"As the said ‘ Memorandum for Will’ is neither holograph nor tested, it cannot receive effect as a valid testamentary writing."

Had the suit taken the form of a contested action with no admission as to genuineness, the third parties would have maintained that proof of authenticity was incompetent. According to the argument of the third parties there are two classes of testamentary writs—(a) attested deeds, and (b)holograph writings; and in order that a writ may fall under the latter group it must, to some extent, be in the handwriting of the granter. As no part of the two writs, save the signatures, is in the handwriting of the granter, the argument was that the deeds are fundamentally invalid and incapable of being set up by proof; an unattested typewritten deed is fundamentally a nullity in law.

Now it is doubtless true that, when holograph writings are referred to by institutional writers and judges, what was in mind was a deed written in the handwriting of the granter; but this was so because no other form of deed was then known save one that was printed or written. In recent years, however, the typewriter has come into universal use. The majority of formal attested deeds are now typewritten, and in private affairs the typewriter is used where, in earlier times, a pen would have been employed. The case raises the point whether our common law is to keep pace with the march of science or to lag behind. The second parties maintain that there is no reason in principle for not including among holograph writings those with which the case is concerned, or for not extending to those writs all the privileges enjoyed by writs which are recognised by our law as holograph. If a testator prefers to make his will by means of a typewriter instead of a pen, why should he be debarred from doing so ? He can express his testamentary intentions just as readily by the one medium as by the other. In the present case it is found that the testator was able to use the one medium but not the other. The only reason based on principle which was adduced in support of the third parties' contention was this—that, where there is handwriting, there is evidence of individuality, which it was said, typewriting does not supply. This seems to confuse two matters which are quite distinguishable and ought to be kept distinct—to wit, form and proof. The point suggested seems material as to proof of authenticity, but irrelevant as to competency of form. In practical application, however, the point as to individuality is reducible to this—that, if a testator can write three words, "adopted (or accepted) as holograph," he can make a holograph will; if not, he cannot. The three words, however illegibly written, appended to a document printed or typed by any third party, make proof competent, although, for purposes of comparatio literarum, the words may be practically useless; while in the absence of the three words the most conclusive evidence that every letter of every word was typed by the granter must be excluded. Such a result, to my mind, is grotesque, and reduces to an absurdity the argument of the third parties.

This case is concerned solely with the body of the deeds, and no question arises regarding the signatures. These are admitted to be genuine, and they are in a form which satisfies the requirements of the law as to subscription. It was suggested, however, that the argument of the second parties logically led to the possibility of propounding a typewritten signature as well as a typewritten deed. This may be so, but I am not satisfied that a signature in type would be necessarily fatal to the validity of a testament. What the law requires is that a will should be subscribed by the usual or ordinary signature of the granter. If an individual is in use to type his signature, and if it is proved that a typed signature is that of the granter, I do not see why such a signature should not be honoured as fulfilling the requirements of the law as to subscription. Other suggestions which were made as to opening the door to parole proof of dictation, adoption, or authorisation, seem to be met by the consideration that, in these cases, the deed would be not that of the granter alone, but, to some extent at least, that of another. I am not moved by the suggestion that, in deciding the case in favour of the second parties, we are opening the door to startling innovations in practice. I regard the case as so special in its facts as to be unique and unlikely to recur. If it had not been admitted that the deeds were typed by the testator, I doubt if this could have been proved. The result of a decision in favour of the second parties is this—that, while it is affirmed that an unattested typed will is a valid deed, it is made quite clear that such a deed is open to challenge in the matter of authenticity. The maker of such a deed is thus notified that, unless he types the deed in the presence of witnesses, its authenticity is open to successful challenge. He will also, I have no doubt, have in mind that the witnesses may predecease him and that their recollection of events may become hazy and unreliable. Having all this in view, it is manifest that the simplest and safest practice is to utilise the witnesses as instrumentary witnesses and make the deed take the form of an attested document.

On the whole matter I am of opinion that the two writs are effective in law, and that the questions of law should be answered in the affirmative.

LORD BLACKBURN .—It is only of recent years that it has become common for individuals to keep their own personal typewriter and to use it for all the purposes for which they would formerly have used a pen, including among such purposes the writing of their most private correspondence. And it does not appear to me to be any stretch of language to say that a document so transmitted to paper and signed by the individual who transmitted it had been "written" by himself. It is true in this case that, except for the signature, the deed is not the testator's own caligraphy, but it is the work of his own hand and is his own composition from start to finish.

The question in this case is whether a testamentary document so written is or is not entitled to the same privileges which the law has hitherto attached to a holograph testament. The question is an entirely novel one, and in considering it we can look for little help from the authorities. For one cannot overlook the fact that this modern development has never been anticipated by any of the judges or authors who have dealt with holograph documents, and that such statements as, for instance, that a holograph testament must be in the handwriting of the testator, were made at a date when a pen was the only instrument with which it was possible for most people to put their own testamentary wishes upon paper for themselves.

I have come to the opinion that the importance which has always been attached to a holograph testament is partly, at all events, due to the fact that the handwriting testifies that it is a deed composed and written by the testator himself, and that it therefore indicates exactly what his own wishes were as to the disposal of his property. Such evidence would not be provided in the case of a deed written by some one other than the testator, even if it were to be proved that the testator had dictated to the writer the terms in which he desired that the deed should be expressed. For non constat that the deed accurately recorded the precise language which the testator had used, or that he had read over the deed before he signed it.

Now, in the case of a holograph testament the propounder of the deed must show that it is holograph of the testator, and that it constitutes the last will of a free and capable testator—Anderson v. Gill . Otherwise, as I have already said, there can be no certainty that it expresses his own desires. I have no doubt that, in the case of a will written partly with the aid of the testator's own typewriter and signed by himself, the propounder of the will would require to show that in fact it had been typed and signed by the testator. The onus in most cases might be difficult to discharge, but once it had been discharged then it would be just as apparent that the whole deed was the unaided work of the testator as it would have been had the deed been proved to be holograph. For my own part, I can see no good reason why the same treatment as is accorded to a holograph document should not be accorded to a deed so authenticated. It is the work of the testator's own hand, and expresses his own wishes in his own words in precisely the same way as if the deed had been holograph, and in many cases would probably be more legible than a holograph deed.

In the case at present before us no question arises as to the discharge of this onus, for it is admitted that the testament was typewritten by the testator and signed by him with a pen. And, in my opinion, effect should be given to the deed. But I regard it as of great importance that the testator's signature has been written with a pen and not been typed, and that it is admitted to be his signature. Every man's signature is peculiar to himself, and if he is unable to sign his name legibly he would be well advised to resort to someone else to make his will for him rather than to rely upon his own typewriter. Indeed, I think that, in a case where the testator had typed his signature as well as the body of the deed, the propounder of the deed would be unable to discharge the onus

of proving that the whole deed had been composed and written by the testator himself. Every case must be disposed of upon its own merits, and, if the signature were itself typewritten, the scrutiny of the facts would require to be very searching, for it is clear that the possibility of such a document being admitted as holograph might easily lend itself to fraud. But so long as the signature to the deed is in manuscript it would be no more difficult to prove that the signature to a typewritten document was forged than it would be to prove that the signature to a holograph testament had been forged. In both cases a comparison would be required between the signature alleged to be forged and writings of the testator which were known to be authentic, and the fact that the whole of a holograph document was a forgery would lend little or no help in proving that the signature to it was also a forgery.

On the whole matter then, I am of opinion that a deed such as we have to deal with in the present case may be proved as if it were holograph of the testator, and that a deed to which the signature was also typewritten could also be so proved, but only upon the very clearest evidence that the whole of it was the work of the testator.

LORD MORISON .—It is a well-settled principle of our law that a person may make his will by a holograph writing duly subscribed by himself. It is also settled in practice what subscription is. It is that the maker of the will writes his full name or his ordinary signature at the foot of the document, or, in cases where the maker cannot write, the deed must be executed notarially. This case raises no question as to the subscription of the document. It is admitted that the two signatures on the document are holograph of the testator, and it is therefore clear that both documents have been duly subscribed by the testator. It is, I think, beyond question that, if, instead of using his typewriter, the testator here had used his pen and written his testamentary dispositions in manuscript, no doubt could have been raised as to the validity of the deed.

It is explained in the case, however, that owing to physical infirmity the deceased, during the years 1932 and 1933, "invariably" used a typewriter for all his written communications—his own handwriting having become, on many occasions, indecipherable. Accordingly at the dates in question, viz., in 1932 and 1933, the instrument of the deceased's holograph writings was his typewriter and not his pen. In my opinion there is no authority in the law of Scotland for the proposition that a holograph document must be written with a pen. A holograph document is one which is wholly written by the person in whose name it appears. Prior to the introduction of typewriting, writing was always manuscript. It appears to me to be quite immaterial what form—whether manuscript or typewriting—the writing assumes. In all cases the document is, in my view, accurately described as holograph where its maker is the person who, ex facie of the document, appears to have written it. I have no hesitation in holding that, as the document here is admittedly composed of the typewriting of the testator, it ought to be, in law, regarded as his holograph writing. As regards the argument to the contrary, there was no reason suggested why a person who only wrote with a typewriter, and yet was capable of subscribing a document which he had written with a typewriter, should be denied the privilege which is given to a person who could write a document in manuscript. It was said that forgery of a typewritten document was easier than of a manuscript. This is a pure question of fact, and there is no statement to this effect in the case. I am unable to assume its accuracy for the purposes of this special case. There may be checks or characteristics in regard to typewriting which are just as satisfactory as the evidence of experts or others on handwriting. But, after all, this matter as to the chances of forgery only touches the fringe of the problem. The introduction of typewriting for private uses is of very recent origin. There is no law regulating its use and effect, and the question here is an entirely new one.

I think the real question may be put in this way—Does the law deny, to the testament of a person who habitually uses a typewriter to write with, the effect and the privileges which it confers upon the person who writes his deed with a pen ? There is, in my opinion, neither reason nor logic in so holding. I assent to the view that this involves an extension of the law relating to holograph deeds. I humbly think that the extent to which private persons now use the typewriter instead of the pen warrants the extension in the present case. The principles of our common law have always kept pace with changed methods and modern practice. Illustrations of this doctrine may be found in all branches of the law. Typewriting is a modern form of handwriting, and one result of its introduction, now universally accepted, is that a rubber stamp with initials is accepted as a binding signature in all mercantile and ordinary business transactions. The old rule of law which required a document to be signed at the foot of every sheet was held by a majority of seven judges to be abrogated from the implication of the 31st section of the Conveyancing Act, 1874.

In recent times, with regard to a statute of fifty years ago, the word "cart" was held to include a motor car. I think the rule as to the probative character of holograph manuscript must be extended to include holograph typescript. I do not think there is real substance in the apprehension that forgery would be encouraged by the widening of the rule. The forgery of a will is extremely rare. It is possible that in most cases it may be more difficult to make a plausible forgery of a manuscript will than of a typewritten one. On the other hand, the safeguards against forgery can never be complete. If the forger is bent upon his crime, it is probably easier for him to forge the words "adopted as holograph" than to forge a signature. A fabricated attestation is easier than either. All such questions depend upon such a variety of considerations and circumstances that I think it is impossible to reach a general conclusion regarding them. It may in future be easy for particular typewriting machines to operate with special characteristics. The extent to which proof of a document for the purposes of confirmation—whether it be typescript or manuscript—is necessary must depend upon

the circumstances of each case. No difficulty arises on this subject here. The testator, it is admitted, used his typewriter just as most people use their pens. His holograph writings were typescript and not manuscript, and, as he duly subscribed the document, it must, in my opinion, be held to be his testamentary writing.

I think the question must be answered in the affirmative.

Since the foregoing was written I have had the advantage of considering the opinions of my learned brethren in the minority. I think it right to add that I have expressed my opinion only with reference to the special facts admitted in the case. I do not hold that the production of a typewritten document with a signature at the foot of it has per se the privileges of a holograph writing, and I think that attestation or its equivalent will be necessary in the very great majority of such documents, if they are to be accepted as probative writs.

LORD MURRAY .—There can be, in my opinion, no question but that the intention of the testator was that the document in question should receive effect as his will. But this is beside the point. The question is whether, according to our law of authentication, it is a valid will.

In this case both the "will" itself and the appended "codicil" are wholly typewritten, but each of these is admittedly signed by the "testator." In each there is a typewritten clause stating that the documents were typed by himself and accepted as holograph. The case, however, was argued on the footing that no such clause was present, and as raising in principle the question whether a wholly typewritten document, purporting to be signed by a testator, is a holograph writing in the sense of our law once it is proved or admitted to have been typed by the signatory. I confess to some doubt as to whether, in one view of the question to which I shall advert later, the argument for the second parties would not have derived support from those clauses; but, taking the general question argued, it appears to me to raise both an important and a novel question.

The argument involves, in my view, two distinct propositions, which were, however, not kept distinct in the able arguments presented. The first proposition, to which the argument addressed to us was in the main confined, is that this document is, according to our law, holograph of the granter. The second proposition, which is quite distinct, is whether, assuming the document to be not holograph, our law, being a progressive science, should extend to such a document the privilege which it at present accords to a holograph writing.

I doubt whether this document, although popularly spoken of as "typewritten," is aptly described as "writing" of any kind. It appears to me clearly to fall within the second of the two classes of documents mentioned by Stair (IV. xlii. 3), viz., chirographum on the one hand, typographum on the other. The typical case of the first is "manuscript"; of the second is printing or the mechanical production of lettering. It is nothing to the purpose that both classes are dealt with by Stair under the title "Probation by Writ"; for "writ" is here used in relation to proof by documentary evidence in contradistinction to oath by party or parole proof.

The requirements of our law for the observation of some solemnities in the execution of deeds of importance are founded on the civil law, and have been enacted by statute from early times. The purpose of all solemnities or of any rules of authentication is, of course, to secure that the deed shall truly evidence the act or will of the granter or contractor and to guard against fraud. It is, I think, unnecessary to discuss our statutory law as to the necessary solemnities, for the statutes, as Lord M'Laren points out (Wills and Succession, (3rd ed.) vol. i., p. 276), only deal with and regulate deeds written aliena manu, and have no application to holograph writings. The latter are privileged in respect that they are not subject to the statutory rules; and the whole basis of this privilege is that holograph writings in themselves afford the best security against forgery and fraud. As Stair expresses it (IV. xlii. 6), they are "the strongest probation by writ."

What our law as it stands at present defines as a holograph document is not, I think, open to doubt. It is, as its name imports, a document which is wholly—that is, both as to the body of the writ and as to the signature—autograph of the signatory. Our law as to authentication of such writs has hitherto at least required both of the above conditions to be satisfied either actually or constructively. As above stated, the whole ratio of our law, statutory or otherwise, as to the necessity of solemnities in the execution of writs of importance, as pointed out by Stair (IV. xlii. 4), Bankton (I. xi. 24), and Erskine (III. ii. 6 et seq.), is to "guard against forgery," and "holograph" writings afford this security just because that which is autograph of the granter (although perhaps less conclusive than the modern finger-print) is "least imitable" (Stair, IV. xlii. 6), and because "one's handwriting through a whole deed is harder to be counterfeited, and, therefore, less exposed to forgery, than the bare subscription of his name and surname" (Erskine, III. ii. 22). And this security must be apparent from the writ itself, albeit the genuineness of the writing must be established by evidence, which may be by writ, comparatione literarum, or it may be by parole testimony of witnesses who speak to the genuineness, not only of the signature, but of the body of the writ—"who saw the deed written and signed"(Erskine, III. ii. 22).

It is true, however, that early in our law, on the principle of adoption, the necessity for the deed being entirely autograph was relaxed. A deed may, in short, be holograph constructively. For it has long been settled that deeds written wholly or partly in the handwriting of a third party, or even printed, can be adopted as holograph, provided, in the first case, there be an express adoption of the non-autograph words as holograph, and that the adoptive words be autograph of the signatory; or, in the second case, that the essential terms of the deed be in autograph. Thus printed forms of wills, with blanks, have long been sustained, if filled in in autograph by the signatory. The first of these cases is the stronger for the argument of the second parties, for here the material for comparison between the "writing" of the deed and signature may be reduced to the minimum of the three holograph words "adopted as holograph." Even so, some comparison, although limited in extent, is available, and affords a measure of security against counterfeiting.

If the argument of the second parties be sustained, any check by means of comparision would, of course, be impossible, and parole testimony would be substituted for such real evidence as is afforded by the document itself. Indeed, carried to its logical end, the argument would dispense even with the requirement of autograph signature; for, if the typewritten body of the document is holograph when typed by a testator, there seems no logical reason why the signature should not also be typed. For in the case of holograph writings the argument that the autograph character of the deed itself and of the signature may be divorced, and that these form different chapters of our law, is not, in my opinion, tenable. I am therefore of opinion that the first proposition, that this document is a holograph writing in the sense of our law, should be answered in the negative.

Assuming this view to be well founded there remains, however, for consideration the second proposition, viz., that, although not "holograph," our law, being progressive in character, should now accord to it the privileges of a holograph writ.

There is force in this argument. I agree that our law is progressive, and that, as education and morality advance and social conditions change, there is a tendency to dispense with the restrictions of our older law which were designed to guard against fraud and the like—witness, for instance, the modern tendency to relax the restriction of the older law in certain cases to proof by writ or oath only. I accept this general view. But I hesitate even to-day, when typewriters are used almost universally in the commercial world and are very largely used for private and domestic correspondence, to sanction a step which, logically, might result in making the validity of all deeds, including testaments, rest on parole testimony. I am, of course, assuming that such parole testimony evidences that the document represents the concluded act or will of the granter. For if a deed may be typewritten, why not also a signature ? If a deed be typewritten, why may it not also be dictated to a gramophone, where there is at least the check of the sound of the individual voice, for what it is worth ? If a signature admitted or proved to be genuine may adopt a whole deed with only three autograph words added, why should such a signature not frank the whole writing ? If parole proof that the testator himself typed the deed is enough, why not parole proof that he dictated it, or even that it was authorised by him in terms, that it was read to him, that he approved and adopted it as his own; that in token of such adoption he wrote or typed his signature; or did neither, but simply delivered it with an amply proved declaration that it was his deed or his testament ? These cases which I have figured go far beyond the present "first step" which the Court is here invited to take. It is true that in each case the real question to be answered by the Court is whether the document represents the true intention of the granter, that it is his act, and that he himself "made" the deed actually or constructively. But, if parole testimony is to be admitted as satisfactory evidence in the present case, which is simple enough, it is difficult to frame any logical objection to such successive steps or advances as I have figured. The only answer to the admission of such proof which occurs to me is the answer given by our institutional writers, that it is not "safe," owing to the "lubricity of oral testimony." Pushed to its extreme limits, such a relaxation of our law as to authentication might virtually result in the abrogation of our whole law, statutory or otherwise, as to the necessity of solemnities in the execution of important deeds. I am not satisfied that the time has yet come for taking a step which might result in such a drastic innovation. Our law, as it stands, is simple and understanded of the people; it provides for a measure of certainty; and I am not aware that its restrictions have proved irksome. I recognise that this case is special, as the testator was unable to write, or only able to do so with difficulty. Even so, it is no great hardship in such a case for a man to adopt the simple means which our law affords for the valid execution of deeds by persons thus situated. It is not difficult to obtain a couple of witnesses. I have accordingly—I confess with some reluctance—come to be of opinion that the document here in question is not a valid will in accordance with our law.