Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Lanarkshire in an action at the instance of Hill and his mandatory against Mrs Arthur, as executrix of her deceased husband Thomas Hill, for a conditional legacy left to the pursuer by a testamentary writing executed by the deceased Thomas Hill. Thomas Hill, on the day of his death, 17th September 1856, executed the testamentary writing in question in the Royal Infirmary of Glasgow. It contained the following clause:—“In the case of my son Edward Hill not arriving at his majority the £75 sterling which I leave to him are to be equally divided between my wife Alice Ann Hill or M‘Can and Thomas Hill, son of James Hill, and now residing in County Down, Ireland.” It concluded:—“I sign these presents on this seventeenth day of September, One thousand eight hundred and fifty-six, in the presence of George Rainy, doctor of medicine, Glasgow Royal Infirmary, and William Taylor, porter, Glasgow Royal Infirmary.” It did not, howover, contain the name of the writer, but was in point of fact written by Dr Rainy. The defender Mrs Arthur was thereafter confirmed executrix-dative qua relict of the deceased, and the testamentary writing in question was signed as relative to her oath to the inventory of the moveable estate, and recorded in the Commissary-court books. Edward, the son of the deceased, died on the 4th December 1858 before reaching majority, and on 3d July 1868 the pursuer brought the present action for the half of the sum of £75 due to him under the testamentary writing on the death of Edward.

The defender pleaded—(1) That the testamentary writing was invalid, in respect that it was neither holograph nor tested; and (2) that even if it were, the deceased had left no funds out of which, after payment of debts and preferable claims, the legacy could be paid.

On 11th November 1868 the Sheriff-Substitute ( Dickson), on the motion of the pursuer, and on his statement that he had not previously had access to the testament of Thomas Hill, and that the person who wrote it was still alive, allowed him to have the testing clause completed, reserving all objections competent to the defender.

Thereafter, on 19th March 1869, he pronounced another interlocutor, finding that the testamentary writing being now filled up in the testing clause, repelled the defence that the writing was neither holograph nor tested. He observed in his note:— “The judgment sustaining the validity of the document in question, although the testing clause has been completed ex intervallo, proceeds on the principle that a party executing a deed with a blank in the testing clause, gives a mandate to the party in whose hands he places the deed to complete, it according to law. That principle has been applied in numerous cases—viz., Drury v.Drury, 1753, M. 16,936; Bank of Scotland v. Telfair's Creditors, 1790, M. 16,909; Dick's Trustees v. Dick, 1798, Hume's Decs., 908; Blair v. Earl of Galloway and Others, 15th November 1827, 6, S. D. 51; Leith Banking Company v. Walker's Trustees, 22d January 1836, 14, S. D. 332; M'Leod v.Cunningham 1841, 3, D. B. M. 1288, affirmed 5 Bell's App. Ca., 210; Shaw v. Shaw, 1851, 13 D. B. M. 877; M'Pherson v. M'Pherson, 1855, 17 D. B. M. 357; Bait v. Primrose, 1859, 21 D. B. M. 965. The defender urged that the cases in which the testing clause has been sustained, when completed ex intervallo, were cases of onerous deeds, whereas the document in question is not so, but is testamentary. The Sheriff-Substitute, however, has not found anything in the decisions to indicate that a distinction in this respect exists between onerous and gratuitous deeds. On the other hand, the tendency of the law is to support, and even to favour, testamentary writings, Stair, 3, 8, 34; Erskine, 3, 2, 23; Buchanan v. MArtey, M. 16,955; Bog v. Hepburn, M. 16,960; Stewart v. Ashley, 16,857; Hardie v.Hardie, 6th December 1810; Rintoul v. Boyter, 1833, 5 Deas and Anderson, Rep. 215, affirmed 6 W. and S. 394. It is true that the authority of these cases as to testing clauses completed ex intervallo has been somewhat shaken by M'Neille v. Cowie, 1858, 20 D. B. M. 1229; but as there is no judgment of the Court overruling them, the Sheriff-Substitute has deemed it his duty to follow them in this case. He has been the more disposed to do so on account of the circumstances that the document was produced by the defenders, because this circumstance indicates at least prima facie that it was placed in the hands of the female defender, as custodier, and with the view of its being completed, and made a valid deed, and also because there is nothing on record to indicate that the deceased, either when he subscribed the document or afterwards, intended that

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it should be ineffectual. The Sheriff-Substitute does not anticipate what may be his judgment in the event of a proof being led as to the circumstances connected either with the subscription of the document or the defender's custody of it. The fact that the document in question was produced before the Commissary, and docqueted accordingly on 17th December 1856, was founded on by the defender as amounting to registration, and bringing it within the rule that writings cannot be completed in the testing clause after registration. The Sheriff-Substitute, while recognising the rule referred to, cannot, either on principle or in conformity with the decision in M'Pherson v. M'Pherson, supra, regard the mere production in question with reference to the female defender's appointment as executrix as bringing the case within this rule. Nor does he consider that the production of the document by the defender in this cause amounts to an effectual bar to the testing clause being completed, for ex hypothesi it lay in her hands for the purpose inter alia of being completed, and under an implied mandate from the testator to have it completed. Her non-completion of it timeously was a neglect of the testator's directions, as involved in that mandate, and she ought not to be allowed to profit by her own act of producing it in process incomplete, and so defeat the testator's intentions, and impair the pursuer's interest, for her own advantage.”

Thereafter, on appeal to the Sheriff-Depute ( Bell), the record was opened up, and the following plea was added by the defender:—“The addition made to No. 6–2, without prejudice as aforesaid, cannot be held as part of the document, in respect it is incompetent to complete the testing clause of any gratuitous undelivered deed, more especially of a mortis causa deed, after the death of the granter, and after it has been recorded in the Commissary-court books, and the Commissary has held, as he did, No. 6–2 to be no will or testament.”

After a proof the Sheriff-Substitute granted decree in terms of the conclusions of the summons.

On appeal the Sheriff-Depute pronounced this interlocutor and note:—

“ Glasgow, 11 th August 1870.—Having heard parties’ procurators on the defenders’ appeal, and made avizandum with the proof, productions, and whole process, finds that the document No. 6–2, which is dated 17th September 1856, was at the death on said date of the late Thomas Hill, by whom it bears to be signed, improbative, ineffectual as a testament, and null under the provisions of the Act 1681, cap. 5, in respect the writer of the deed was not then named and designed in the testing clause: Finds that it is settled by a series of decisions that a party who has received delivery of a deed duly signed, but defective in the testing clause, is entitled even after an interval of years, and after the death of the granter, to insert or procure the insertion of a complete testing clause, and thus to validate the deed, but this only provided the deed has not previously become the ground of a solemn legal act, or has not been made the foundation of a judicial demand. Finds that the said document, No. 6–2, was in the pursuer's possession, and also in that of the female defender, and her man of business, for some time after the death of the said Thomas Hill, but no attempt was then made to complete the testing clause, and the pursuer and John M'Cann, the other person named in the document as executor, refused to administer under it: Finds that, on the footing that Thomas Hill had died intestate, the female defender, on 22d October 1856, procured herself decerned executrixdative qua relict of said deceased, as is instructed by the testament dative No. 6–1: Finds that the present action was not raised till 3d July 1868, and its conclusions are founded on the narrative that the female defender is executrix of her late husband, Thomas Hill, or vitious intromitter with his estate, and that a conditional legacy of £37, 10s., bequeathed to the pursuer by the alleged will in question, had opened to him and become due and payable two years after the death of Thomas Hill by the death of the preferable legatee, his son Edward Hill: Finds that it was inter alia pleaded in defence that the alleged testament was of no force or effect in respect of the want of the necessary statutory solemnities, and that the female defender had in consequence been decerned only executrix-dative ab intestato: Finds that in support of those averments the document itself was produced, together with the said testament-dative on 16th July 1868: Finds that after the record bad been closed the pursuer moved for leave to have the testing clause completed by the addition now appearing therein, beginning with the words ‘these presents ’ to the end, and by interlocutor of date 11th November 1868, the Sheriff-Substitute granted the said motion ‘before answer, and reserving all objections competent to the defenders to the validity of the said document, on the ground that the testing clause thereof has not been timeously completed:’ Finds that a proof was afterwards allowed, and a new record having been first made up by condescendence and defences, and by the interlocutor under appeal, it has been found that the completing of the testing clause was competently allowed on the said 11th November 1868, that it has been completed accordingly, that the testament is effectual, and that it validly bequeathed the legacy to the pursuer, which has now vested in him; and, in respect of these findings, the defenders’ first and second pleas in law are repelled; Sustains the defenders’ appeal against said findings; and finds on the contrary, that in the circumstances of the case no alteration of or addition to the document of No. 6–2 could be competently made either propria motu of the parties, or under the authority of the Sheriff-Substitute, so late as November 1868, or could have the effect of making said document, which was previously improbative and null, probative and valid, and this in respect first, that the document had already been produced in the Commissary-court, and deponed to by the female defender as the only writing of a testamentary character left by the deceased, in virtue of which oath she was confirmed executrix-dative qua relict; second, in respect a judicial demand had been made in this process by the pursuer on the deed as it stood, he having previously had an opportunity, of which he did not avail himself, of getting the testing clause completed timeously; and third, that it was at all events extra vires of an Inferior Court to sanction the alteration or addition, whatever might have been the powers of the Supreme Court thereanent: Therefore sustains the two pleas in law which were repelled by the Sheriff-Substitute, recalls the interlocutor appealed against, assoilzies the defenders, and finds the pursuer liable in expenses, allows an account thereof to be given in, and remits the same to the auditor of Court to tax and report, and decerns.

Note.—The Sheriff feels that there is some

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nicety in this case. A certain laxity of practice has crept in, which, though permitted, has always been regretted by our Courts, as to the period within which a testing clause may be completed; but the Sheriff is not aware of any case in which the barriers, which hero present themselves to such completion, have been successfully overleapt. The learned Sheriff-Substitute, in his excellent work on Evidence, says (sec. 727) the testing clause may ‘not be completed after the party has raised action or execution upon the deed, or has placed it beyond his control in a public register.’ Mr Tail;, in his work on Evidence, says (p. 104) ‘after a judicial demand has been made upon a deed, or when it becomes the ground of a solemn legal act, a rectification of the testing clause is not admitted.’ Mr Bell, in his Lectures on Conveyancing, says (vol. 1, p. 223) ‘the right to add a testing clause to a document must in each case be held as depending on its own circumstances, and the power of addition to, or alteration in, the testing clause is at an end after the deed has been made the subject of an interlocutor, and equally so when, being entered in a register for preservation or execution, it is permanently in the custody of the keeper of the register.’ See also to the same effect, Duff on Conveyancing, p. 19. In the case of the Tutors of Dick, November 21st, 1798 (Hume's Dec., p. 908), which was founded on by the pursuer, the Court held it competent to fill up the testing clause of a contract of marriage after the death of both the spouses, but the report at the same time expressly states that the deed was not produced in judgment until the clause had been filled up by the agent for the pursuers. On the other hand, the rubric in the case of Brown, March 11th, 1809, F. C., is, ‘The Court will not grant warrant to fill up or amend the testing clause of a deed, even in favourable circumstances, after the death of the grantors, and after the deed has been presented for recording.’ In the case of The Bank of Scotland, February 17th, 1790, Mor. p. 16,909, it was admitted in the pleadings for the party maintaining the right to complete the testing clause that this could only be done ‘at any time before the writing is made the subject of litigation, when the rule is that pendente lite nil innovandum.’ The case of M'Pherson, 7th February 1835, which at first sight seems to have rather a contrary tendency, will be found on examination to have gone a good deal on the speciality that there had been homologation. The circumstances in the present instance are greatly more unfavourable. For a period of twelve years after Thomas Hill's death, the document, No. 6–2, was ex confessu ineffectual as a testament, and in the interval had been used as evidence in the Commissary-court, that Hill had died intestate, without any opposition on the part of the pursuer, who knew of the existence of the writ, and had had it in his custody; the female defender was decerned executrix-dative qua relict, and was undisturbed in that office all the above time. The pursuer then raises this action, founding on the invalid writ, and concluding against the defender, as if she had been executrix-nominate. The writ is produced, and the record is closed without objection, and then, for the first time, the pursuer craves to be allowed to make an ex post facto addition to the document, which is entirely to change its character. On a similar motion being made to the Sheriff of Ayrshire in the case of Brown, above quoted, ho found it ‘incompetent for him to interfere in a question of this kind, reserving to the petitioner to apply to the Court of Session for remeids as accords.’ It is conceived that in point of form this was a proper course, but upon the merits, if it were competent to entertain the motion in this Court, it is thought that the attempt post litem motam, and after all that had taken place since Hill's death, to raise a dead instrument into life, came too late.”

The pursuer appealed.

Scott and Brand for him.

Balfour in answer.

At advising—