Scottish Court of Session Decisions

The deceased John Low was a native of Aberdeen, but went to Glasgow when a young man; and afterwards became secretary to the City of Glasgow Bank, which office he held till Whitsunday 1871. He continued to reside in Glasgow till Whitsunday 1872, and went to stay at the house of Mrs Low, his sister-in-law, in Aberdeen, on the 24th of July 1872. Shortly after he requested Mrs Low to telegraph for her son-in-law, Dr Dickie, who lived at Banchory, about sixteen miles from Aberdeen, to come to him and “to get two men to sign,” but it was too late to do anything after Dr Dickie arrived, Mr Low having become insensible in the interval, and he died rather suddenly on the 26th of July 1872.

Mr Low was an elder of the congregation and treasurer of the Sabbath School Society of Free St John's, Glasgow. Down to the time of his death he was a contributor to the Sustentation Fund and College Fund of the Free Church.

He left means invested in various ways, with a considerable sum on deposit-receipt in the City of Glasgow Bank: in all about £20,000. He also left household furniture, and some personal trinkets.

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The testator's nearest surviving relatives are:—(1) Mrs Margaret Low or Lawrie, and Mrs Mary Low or Brebner, his full sisters; (2) The family of Mrs Margaret Low or Lawrie, consisting of 1. Jane Lawrie or Whiteworth, wife of Joseph White—worth, chemist, London; 2. Sophia Lawrie or Clark, wife of William Clark, engineer, Woolwich; 3. Mary Lawrie or Pithie, wife of the Reverend James M'Christie Pithie, parochial schoolmaster, Tullynessle; 4. Margaret Lawrie or Webster, Aberdeen; 5. Henry Lawrie, shoemaker, Banchory—Devenick; 6. William Lawrie, gardener, Redhall, Kincardineshire; 7. Agnes Lawrie, residing with her mother at Nigg; 8. the family of Mrs Eliza Lawrie or Brown, who predeceased the testator; (3) The family of Mrs Mary Low or Brebner. consisting of two members, John Low Brebner and William Lundie, a son by a former marriage, who both have families; (4) Mrs Low, widow of a half—brother of testator, and her family, consisting of six members.

John Low left two writings holograph of and signed by himself, dated respectively the 22d May 1869 and 22d April 1872. The parties to the Special Case admitted these writings to be holograph of the deceased, and to have been written and signed of the dates which they bear. They also admitted the validity of the nomination of executors contained in the first writing, and the right of the accepting executors to act as such.

The two writings are as follows:—

A.— Writing by John Low, dated 22 d May 1869.

14, Windsor Terrace,

Glasgow, 22d May 1869.

I, John Low, banker in Glasgow, considering it to be my duty to make my last will and testament to prevent disputes after my death, do hereby dispone, assign, convey, transfer, and make over to Mr George Grant, advocate, Aberdeen, Mr John Cruikshank, banker, Aberdeen, Mr Alexander Stephen, late merchant in Aberdeen, and Charles M'Hardy, merchant in Glasgow, all of whom I hereby appoint as my executors, or their nominees, to carry out my wishes as to the disposal of my means and substance, whether that be in cash, bonds, bills, shares in any joint-stock company, heritable property, household furniture, or whatever may belong or be owing to me at the time of my death, and their acts are to be held the same as if done by myself, and they are to be free of all personal responsibility for their actings save the just count and reckoning for the funds.

First.—As to the disposal of my effects, I desire that all my household furniture, bed and table linen, silver plate, books, pictures, &c., be sold, and out of which funeral expenses to be paid.

Second.—All investments to be realized, and the money lent on heritable property or first-class railway debenture bonds.

I desire the following legacies to be paid free of duty, viz., To John Low Brebner one hundred pounds, John Low Pithie one hundred pounds, John Low Dickie one hundred pounds, John Low Clark one hundred pounds, being all my nephews, and to Free St John's Sabbath Schools twenty pounds, Free St John's Bible Women fifty pounds, Free St John's Local Mission thirty pounds, to be distributed in the local district under my charge, and visited by Mr Crombie and others, in annual sums of five pounds for six years.

To each of my executors ten pounds.

I desire the interest on the residue of my estate to be divided into three equal parts (after deducting an allowance to the party who may be appointed as factor for the trust), and given to my two sisters, Margaret Lawrie and Mary Brebner, and my sister-in-law Mrs Low, in half-yearly payments.

The families of the annuitants to get the interest of their mother until the death of the last annuitant, when at the ensuing money term the residue of my estate is to be divided into two parts—the one-half for the families of my two sisters (excluding the jus mariti of their husbands), and the other half to the Treasurer of the Free Church for the Sustentation and College Funds equally. The interest accruing to be applied as a contribution annually from Free St John's Church Glasgow, for the Sustentation and College, and I desire the portion of interest to this last fund to be applied in forming two or more bursaries as the professors may suggest, but their recommendation subject to the approval of Free St. John's Session, Glasgow.

“John Low Pithie to get my Gold Watch and chain, and failing him John Low Clark; John Low Dickie my rings and other personal trinkets.

All former Wills cancelled.

Witness my hand this twenty-second day of May 1869.

John Low.”

B.— Writing by John Low, dated April 22,1872.

“14 Windsor Terrace,

St George's Road,

Glasgow, 22nd April 1872.

I desire to bequeath as follows:

Annuities to my sister Margaret	£200 p. Annum
Mary	200 p. Annum
Mrs Low	100 p. Annum
	£500

free of legacy Duty

to my Nieces

Eliza Lawrie or Brown for family equally	£1000
Sophia Lawrie or Clark	1000
Mary Laurie or Pithie	2000
Mrs Agnes Low or Dickie	1000
Namesons Brown	Clark	Pithie	Dickie	Brebne	£ 100 each	500
Charities in Glasgow	1000
Do Abd n	1000
	£7500

(On second page)

Suppose my estate to realize	£20000
take off	7500
	£12500

Interest at 4 p/c on £12,500 would pay the Annuitants, but if short take out of Capital.

To Agnes Lawrie £1000 at the death of her

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mother, exclusive of the jus mariti of any husband she may marry.

Balance left for further disposal

John Low.”

These writings were found in Mr Low's travelling bag after his death, in his sister-in-law's house in Aberdeen. The first in date was found in a leather case in the travelling bag, along with a dedication of himself to God, and the one second in date was found in a pocket book in the travelling bag, along with a memorandum regarding the amount of his means and estate, and the state of his health.

The testator's name-sons, John Low Brebner, John Low Pithie, John Low Dickie, and John Low Clark, agreed, in the event of the writing second in date being found to be valid and effectual, to hold, but without prejudice to the pleas of other parties, that the legacies of £100 to each of them, in the writing, as substitutionary for the legacies of the same amount in their favour in the testamentary writing first in date, and not as additional thereto. And the other special legatees in the writing second in date have agreed, in the same event, to accept their respective legacies under deduction of legacy duty.

The parties of the first part maintained—(1) That both writings were valid and operative testamentary writings; (2) That the writing second in date superseded the first to the extent of the sum of £20,000 or thereby; and that—(3) The sum of £11,500 was intestate succession of the deceased, and fell to be paid to the next of kin, subject to the burden of the annuities.

The parties of the second part maintained—(1) That the writing first in date alone is a valid and operative testamentary writing, and that the writing second in date is merely a memorandum or jotting, and does not contain the concluded wishes and directions of the deceased regarding the disposal of his estate or any part thereof, nor any revocation of the first. (2) That in the event of its being held that both writings are valid, the second in date should be read under and along with the first, and should only be held to be operative quoad the bequests to individuals specified in itself; and (3) That the bequests to congregational charities in the first writing, and the provisions regarding the disposal of the capital of the residue therein made, fall to be given effect to.

The opinion of the Court as to the effect of the writings was requested on the following questions:

1. 1. Is the writing second in date to be held a valid testamentary writing?

   In the event of the first question being answered in the affirmative,

2. 2. Is the writing second in date to be held as excluding and revoking the writing first in date, as regards the disposal of the testator's whole estate in money, investments, &c.,? And

3. 3. Is the balance of £11,500, or thereby, brought out as residue in the second writing, to be dealt with as residue is directed to be dealt with by the first writing, or does it fall to be dealt with as intestate estate, subject to the annuities mentioned in the second writing?

Argued for first parties—(1) The writing second in date is holograph, and dated and signed by the testator, the date is admitted as correct by both parties. The words,” I desire to bequeath,” are a sufficient direction as to the disposal of his estate (Mags, of Dundee v. Morris, 3 Macq. 161; Robb, 10 Macph. 692); (2) granting that it is the rule of law as settled in Grant v. Stoddart, 1 Macq. 163, that if possible the whole testamentary writings of a person should be given effect to if possible; and also that revocation is not to be held as implied without good reason; we have here a revocation of the former deed, so far at least as the disposal of £20,000 or thereby is concerned. The said sum, although only disposed of to the extent of £8,500, is yet all dealt with in the second deed, and at the end thereof the words occur,” Balance left for further disposal.” The testator could never have written these words unless he believed that the former settlement of his estate was revoked. The whole scheme of the second deed is inconsistent with the first, and both cannot have been intended to stand. The testator never disposed of said balance, and it is therefore intestate estate in the hands of his executors.

Argued for the second parties—The second deed is simply a jotting or memorandum for a more formal deed, and bears on the face of it to be unfinished, and not to dispose of all the testator's estate; (2) even admitting its validity as a testamentary writing, it can only be good as regards the specific bequests mentioned therein. A revocation of a well considered and comparatively formal will is not to be sustained except on very strong grounds. A bequest once deliberately made, can only be revoked by words expressing equal deliberation and equally strong evidence of intention as those by which it is granted, and there are no such words here.