Scottish Court of Session Decisions

The facts of this case, which turned entirely upon the evidence, will be found in the Lord Ordinary's Note and Lord Ardmillan's opinion.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 6th March 1873.—The Lord Ordinary having heard counsel, and considered the closed record, proof, and process,—Finds that the settlement or testamentary writing libelled on, dated 13th June 1869, and being No. 24 of process, is the genuine writing of the deceased Alexander More, of Monkrigg; and appoints the cause to be put to the roll, with a view to further procedure.

Note.—The late Alexander More died at Monkrigg on 19th June 1869, after an illness which confined him to bed only four days. He had been suffering from chronic inflammation of the bladder for some time previously, and was regularly visited by his ordinary medical attendant from 3d June until his death. In consequence of his symptoms, Dr Warburton Begbie of Edinburgh was called in as consulting physician, and visited him at Monkrigg on Saturday 12th June. Dr Begbie considered his state to be anxious, and informed him that he was seriously ill. On that day he rose at a later hour than usual, went down stairs to the library where he usually sat, and remained there all day, retiring to rest at an earlier hour than usual. He did the same on Sunday and Monday. He rose, dressed and undressed himself, and walked up and down-stairs without assistance on these three days. On Tuesday he also, without assistance, dressed and undressed himself, and went to a room on the same floor with his bedroom, where he dined. On the evening of that day he became much worse, and went to bed at an early hour. After this he was confined to bed, and gradually got worse, until Saturday, 19th of June, when he died.

After the funeral, search was made in Mr More's repositories, but no settlement was found. Monkrigg House was occupied for about a week after Mr More's death by his cousin, Miss Aitchison, and thereafter the defender, James More, took possession. The deceased John More, and his mother and sister, the pursuers, also resided for a short time after Mr More's death in Monkrigg House. Soon after Alexander More's death an

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advertisement was inserted several times in the Haddingtonshire Courier by the Messrs Aitchison of No 77 Queen Street, Edinburgh, cousins on the mother's side, offering a reward of £100 for the discovery of Mr More's will, as it was supposed that he had not died intestate. But no settlement was found. The defender James More was confirmed executor-dative to Mr More on 18th November 1869, and the defender Thomas Arthur is the cautioner in the confirmation. The sum of the inventory amounts to £4724, 3s. 10d. The defender James More, and the said John More, both claimed to be heirs to Alexander More, and presented petitions to the Sheriff of Chancery, each of them claiming to be served heir to him. During the dependence of these petitions, an agreement was entered into on 17th March 1871, under which the defender James More paid to John More £12,000 in consideration of John More withdrawing his petition to be served heir, and all opposition to the service of James More. Mr William Wood, C.A., had been appointed judicial factor on Mr More's heritable estate, and he let Monkrigg House, with the furniture therein, as a furnished house to the witness Mr Scott, for three years from Whitsunday 1870.

Mr Scott entered upon possession of Monkrigg House at Whitsunday 1870, and on 29th July 1872, that is, upwards of three years after Alexander More's death, two of Mr Scott's servants, the witnesses Johanna Williamson and Isabella Elder, when dusting the curtains of the bed in the yellow room in which Alexander More died, accidentally found under the valance which lies upon the bolster curtain (that is the piece of curtain nailed to the two upper bed posts), the settlement libelled on. It was pinned to the top of the bolster curtain about an inch or two from the right upper bed post, and was completely covered by the valance, the settlement being only 8½ inches long, while the valance at the place where it was found is 1 foot 9 inches deep. The settlement was immediately taken by the servants to Mrs Scott, who gave it to her husband, and he placed it in the hands of Mr Todrick, writer in Haddington, by whom intimation was sent to the various persons interested. At this time John More was dead, having died in March 1872, survived by the pursuers, his mother and sister, who are his executors-nominate under a disposition and settlement dated 1st March 1871.

The settlement so discovered by Mr Scott's servants is in the following terms:—‘ Monkrigg, 13 th June 1869.—This is to certify that I leave my whole property, and everything that I possess, to my late uncle Davie More's grandchildren, residing at 7 Pleasance, Edinburgh, with the exceptions of One hundred pounds to Miss Jamieson, and Fifty pounds to Ellen Shannon. Alexr. More.’

It is in these circumstances that the present action has been raised by the pursuer, Helen Gilchrist More, as the only surviving grandchild of the said David More, of No. 7 Pleasance, and by her mother, as along with her executor of her deceased brother John More, for the purpose of obtaining delivery and payment from the defender James More, and from Thomas Arthur as his cautioner in the confirmation, of the moveable estate of the late Alexander More, intromitted with in virtue of the confirmation. The pursuer's claim is rested upon the said settlement, which they allege to be holograph of and subscribed by Alexander More. It is now admitted by the defenders that Helen Gilchrist More and her brother John More, who resided at No. 7 Pleasance, Edinburgh at the date of Alexander More's death, were then the only surviving grandchildren of his uncle, David More; but the defenders deny that the said settlement is holograph of [Alexander More. A long proof has been led by the parties; and the question now raised for decision upon that proof is, Whether the said settlement is the genuine writing of the deceased Alexander More?

The Lord Ordinary has repeatedly considered the proof, and he has also carefully considered the writing of the settlement, and the writings and signatures in process admitted to have been written by Alexander More, and compared the one with the other. Seven witnesses were examined on each side, who were more or less acquainted with Alexander More's handwriting. Two engravers were also examined on each side. The Lord Ordinary has not attached any weight to the opinions of these engravers, and he has only used their evidence for the purpose of considering the peculiarities in the writing of the settlement which are founded on by the parties.

After carefully considering the proof, the Lord Ordinary is of opinion that the weight of the evidence is in favour of the pursuers, and that it is established by the proof that the settlement is the genuine writing of Alexander More. Seven witnesses, besides the engravers, were examined on each side. The whole of the pursuer's witnesses are neutral parties, while the two leading witnesses for the defender, Mr Richardson, writer, Haddington, and Mr Alexander Gifford, S.S.C., are the agents of the defender James More in the present litigation. The Lord Ordinary does not think it necessary to allude in detail to the evidences of these witnesses. He considers that the witnesses for the pursuers are better qualified to give evidence as to the authenticity of the settlement than the witnesses for the defenders; that their evidence is of greater weight; and that it is supported by the genuine writings of Alexander More, which are produced in process. The position of Mr Richardson and of Mr Gifford, as the agents of the defender James More, materially affects, the Lord Ordinary thinks, the value of their evidence,—seeing that they are giving evidence on a matter of opinion, and by comparison of the writing of the settlement with the impression on their minds of the genuine writings which they received from Alexander More, or saw him write, or by comparison of the settlement with the genuine writings in process, or some of them, or by using both of these means.

The Lord Ordinary is quite aware that the onus of proof rests upon the pursuers, and that the defenders do not require to prove that the settlement is a forgery. But in considering the question whether the settlement is Alexander More's genuine writing, he conceives that it may be examined to see whether there is any internal evidence of forgery. He has been unable to find any such evidence. There is no appearance of painting or of copying in the writing, and there are various peculiarities in it which would not have occurred if the settlement had been forged, either by one well acquainted with Mr More's handwriting or with specimens of it before him. The word ‘Monkrigg’ is not written in the way which Mr More wrote that word in his letters. But his correspondence shews that he occasionally formed the ‘M‘ in the same

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manner. The two letters ‘g’ at the end of the word, though not written as he usually wrote them in that word, or as the same letter is written in the body of the settlement, yet are in his style, and the long part of each of these letters, and particularly of the last one, is formed in the same manner as it is to be found occasionally in his genuine writings. The rest of the word appears to the Lord Ordinary to correspond with Mr More's genuine writings. The first letter of the word ‘June’ is not formed as he usually wrote it, but a capital ‘J’ of the same formation is to be found in the word ‘John,’ in the note dated 22d March 1867, No. 32 of process. The word ‘my’ occurs twice in the settlement. It is peculiarly written, the first part of the letter ‘y’ being awanting. This also is occasionally, though not often, found in his genuine writings. (See the notes Nos. 97 and 99 of process.) In writing double ‘s’ he usually wrote them one long and the other short, but occasionally, though rarely, he wrote them both short, as he does in the settlement in the words ‘possess’ and ‘Miss.’ In writing the word ‘Fifty’ in the settlement, he omits the ‘t’ and writes it ‘Fify,’ an omission which, it is thought, no forger would be likely to make. Mr More occasionally made similar omissions in writing. These peculiarities are of rare occurrence in his genuine writings, and not such as any forger would, either from memory or from a study of his writing, have been likely to imitate. It is difficult also to see how any one could have got access to a sufficient number of his writings as to be aware of these peculiarities.

The defenders say that the capital letter ‘P,’ which occurs three times in the settlement, is formed in a way in which he never wrote that letter. That is no doubt true; but that objection tells both ways. No forger would, it is thought, have attempted any such variation. The three letters in question are all different the one from the other, but they bear marks of his general style, and the variation in their formation may be satisfactorily accounted for by the enfeebled state in which he was, of which there is other evidence in the writing of the settlement. The defender also objects that the letter ‘H’ of ‘Hundred’ is formed as Mr More never wrote that letter. That also is true, so far as appears from his genuine writings in process. But the letter bears evidence of his general style of writing, and the way in which the two straight parts of the letter are joined together is very similar to the loop which he occasionally makes at the end of the word ‘self’ in the books, Nos. 144 and 145 of process. The rest of the word appears to be in his handwriting.

In writing letters Mr More subscribed his name ‘A. More,’ and it was only in regularly tested deeds, and in cheques and receipts, that he subscribed ‘Alexr. More.’ In the cheques and receipts in process the signature is written rapidly, and there is considerable variation in the signatures. The signatures are more carefully written in some of the probative deeds in process; but in none of these, except in one, does he form the letter ‘r’ of the word ‘Alexr.’ in his signature in the way in which it is written in the signature of the settlement. That deed is the tack, No. 184 of process. It is dated 1st April 1869, that is eighty days before his death. In two of the signatures on that deed, the letter ‘r’ at the end of the word ‘Alexr.’ is formed in the same peculiar way that it is written in the settlement, that is, like the letter ‘n.’ No forger could, it is thought, have known of that recent peculiarity, as, in so far as the Lord Ordinary has been able to discover, it only occurs in one other signature, namely, that upon the cheque dated 25th March 1869 (No. 67 of process).

It is objected that he never wrote the letter ‘x’ in the manner in which it is formed in his signature and in the body of the settlement. He varied very much in writing that letter in his signature, and he did so in signing the same deed. (See tacks Nos. 139, 140, 141, 142, 183, and 184 of process.) In the tacks Nos. 140 and 141 of process, the letter ‘x’ in the signature is formed in the same way as in the settlement.

It is said that the settlement is not written in his usual mode. His letters, cheques, and cashbooks in process show that when in health his writing varied very much, and that he wrote with ease and rapidity, and without bestowing more care upon his writing than is usually met with in such documents. The writing of the settlement is written with much more deliberation than he usually employed, and it bears, the Lord Ordinary thinks, traces of bodily weakness, and that it was written slowly and with an effort. But that is exactly what was to be expected. He had been suffering from disease for a considerable time, and was much enfeebled. His symptoms had become so grave that Dr Warburton Begbie was brought from Edinburgh to see him. He saw him on the day before the date of the settlement, and found him not only seriously ill, but in an anxious state. He was so weak that, although going up and down stairs without assistance, he was seen on the day after the settlement was written to pull himself up stairs by taking hold of the bannisters with both hands. These circumstances satisfactorily account for the shakiness and formality of the writing spoken to by some of the witnesses.

The settlement was found in a very odd place, and it is not easy to explain why Mr More should have placed it where it was found, and not in his repositories in the library down stairs. Still, it was in a place within his reach, where he could have got it at once, although confined to bed, should he have desired to cancel or add to it, or to deliver it to any third person. It is proved that he was a shy reserved man, and he may not have wished that any of those about him should know its contents, which they might have done had he left it in his repositories down stairs, and sent for it after he was confined to bed. The defenders have attempted to show that he was incapacitated by weakness from placing the settlement where it was found. That place was quite within his reach, and no great effort was required to pin the settlement to the bolster curtain. It is proved that he dressed and undressed himself, and went up and down stairs without assistance on the Sunday and Monday. He dressed and undressed himself, and dined in another room on the same floor on the Tuesday. This shows that he had strength enough to do it. These facts, and the evidence of Dr Warburton Begbie, a skilled and impartial witness, are, the Lord Ordinary thinks, conclusive upon this point. Dr Begbie depones that it was quite possible for Alexander More to stand upon his bed and pin a piece of paper below the valance at the head of his bed. After fully considering the whole evidence upon this part of the case, the Lord Ordinary

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is of opinion that Alexander More, if he desired it, could have pinned the settlement to the bolster curtain, where it was found.

The defenders adduced three housemaids to show that the settlement could not have been pinned to the bolster curtain during the period between Martinmas 1869 and Whitsunday 1872, because they brushed or dusted, as they depone, below the valance which covered the top of the bolster curtain, and would have seen it if it had been there. The Lord Ordinary is not satisfied of this. Much would depend upon the way in which the brushing or dusting was done. Much brushing would not be required beneath the valance, as it is not a place in which dust, especially in a country house, could accumulate. Mrs Scott, in whose service two of these housemaids were, depones that the bolster curtain could have been brushed underneath the valance without the settlement being noticed, unless the valance had been drawn out, and the housemaid had looked up. The valance, at the place where the settlement was found, is 21 inches deep, while the settlement is only 8½ inches long. The valance is arched, and is 17 inches deep in the centre.

It is difficult also to see how anyone could have got access to the house after Alexander More's death, and placed the settlement where it was found. A reward was no doubt offered for the missing settlement, but the amount of that reward was not likely to induce anyone to forge the settlement who had the requisite materials and knowledge to do so. That reward was not offered by the pursuers, but by cousins of Alexander More on the mother's side, who, from their relationship and the kindly expressions in his letters to them, might naturally have expected to be favoured in any settlement which might exist. But they are not even mentioned in the settlement, which is entirely in favour of cousins by the father's side. It appears from the evidence that a convict on a ticket-of-leave from a five years’ sentence of penal servitude was so fortunate as to obtain the place of tablemaid in Mr Scott's service, and that she remained in his service from the end of May to the end of August 1872. But she was a Glasgow thief, and her antecedents, the character and position of the pursuers, and the whole circumstances, preclude the idea that it was through her instrumentality that the settlement came to be placed where it was found.

It is an important circumstance in favour of the authenticity of the settlement that Alexander More spoke to his agent, Mr Watson, of John More, the brother of the pursuer Helen Gilchrist More, as his heir. Miss More (a pro indiviso proprietor of Monkrigg with Alexander and his brother George More) also spoke to Mr Watson, in Alexander More's presence, of their heir. Mr John Martin depones that George More, who died many years ago, said to him that if he and his brother and sister did not marry, all his property would go to his friends in the Pleasance, meaning his uncle David More's people. The pursuer Mrs More also depones that her son John More told her, on returning from visiting Alexander More nine days before his death, that Alexander More had said to him that he was going to leave him everything he had, and that this had been the intention of his brother and sister. It is also proved that Ellen Shannon, the cook, to whom a legacy of £50 is left by the settlement, was a favourite servant of Mr More and his sister, and that they had an affection for her as an old servant. Miss Jamieson, to whom a legacy of £100 is also left, had resided at Monkrigg since 1858, having gone there as a companion to Miss More, and having remained after Miss More's death looking after the house. It was also a natural act for Mr More to make his will after the intimation made to him as to his state by Dr Begbie on Saturday the 12th of June, seeing that the only settlement in existence was one executed by him in 1837, in favour of his brother and sister, who had predeceased him.

After full consideration of the evidence in regard to the writing and subscription of the settlement, No. 24 of process, and of the whole facts and circumstances established by the proof, the Lord Ordinary is of opinion that the pursuers have proved that the said settlement is the genuine writing of the deceased Alexander More.”

The defenders reclaimed.

At advising—