Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A.'s Executors v. B. and Others [1874] ScotLR 11_259 (9 February 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0259.html
Cite as: [1874] SLR 11_259, [1874] ScotLR 11_259
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 259↓
Court of Session Outer House.
[
v.
Will
Facts:
A will executed by a testator, who though married had no children, whereby he gave his wife half of his moveable estate, and authorised his executors to divide the residue as they “might think right to do with it,”— Held (by Lord Gifford and and acquiesced in) to have been superseded in toto by the subsequent birth of two children whose births the testator survived for upwards of two years and for upwards of four months respectively.
Opinion ( per Lord Gifford) that a will of which the formal clauses were lithographed, but the names of the testator and trustees, and the effective words disposing of the estate were in the testator's handwriting, was holograph of the testator.
This was an action of multiplepoinding and exoneration at the instance of the executors of A against B, the widow, and C and D, the sole surviving children of A.
A died suddenly on 31st March 1873, aged 44
Page: 260↓
years, leaving a will executed by him on 30th January 1869 dealing only with his personal or moveable estate. His heritable estate was of trifling value. This was partly written and partly lithographed, but was holograph of A in so far as written. Under the will the pursuers were nominated executors, and they were directed to pay “one-half of all my money, and all my furniture and personal property, to my wife (B), and the residue to be divided as the friends named above may think right to do with it.” The whole moveable means and estate amounted to about £23,000, which formed the fund in medio. The pursuers raised this action in order to have judicial authority interponed in their administration and distribution of the fund. A and B were married in 1863. Prior to the date of the will two children had been born, but had both died. C was born on 24th January 1871. and D on 8th November 1872. The deceased for about six or eight weeks prior to his death suffered from an affection of the chest, but was able to attend to business till the day of his death. About three months before death he expressed to his wife an intention to make a new will, but no such deed was executed. The will was found in a drawer in a wardrobe, along with other documents of value, including the titles of certain heritable subjects of small value recently purchased. The only persons interested in the succession were—(1) B, the widow, and (2) C and D, the infant children, born subsequently to the date of the will, and the curator ad litem appointed to them.
The claim of the widow was as follows:—“(1) To be ranked and preferred preferably on the fund in medio to the whole furniture and personal property, other than money, left by the deceased; and (2) to be ranked and preferred preferably to one-half of the whole money or other moveable estate, other than that above claimed, pertaining or resting-owing to the said A at the date of his death.”
There was no marriage-con tract between A and his wife, and the children claimed as follows:—“(1) One-third of the whole moveable or personal estate of the deceased A, equally between them, in name of legitim due to them as the only surviving children of their father; and (2) one-third of the said estate, equally between them, as the amount of the executry estate falling to them as sole next of kin: Or alternatively, In the event of its being found that the before-mentioned settlement contains a valid and effectual bequest in favour of B, the said bequest does not include more than one-half of the deceased's moveable or personal estate, after deducting debts and expenses of administration; and the claimants, as the only children and sole next of kin of their father, claim to be preferred equally between them to the whole residue of his said estate.” And in pursuance of their claims they pleaded—“(1) The document dated 30th January 1869 is invalid and ineffectual as a settlement of the deceased A's moveable or personal estate, in respect—1. It is not holograph of the granter; 2. It was not, prior to the granter's death, duly tested, and is vitiated in its date; and 3. the granter's wife, being largely interested in the same as legatee, was disqualified from acting as an instrumentary witness. (2) Assuming the said document to have been at the date it bears a valid settlement, the same has been revoked or superseded in toto by or in consequence of the birth of the claimants after its date, and the other circumstances set forth in the condescendence. (3) The claimants, as the only children of the deceased A, are entitled to legitim, and the deceased having died intestate, they, as sole next of kin, are entitled to the executry estate, all as claimed. (4) In any event, the direction in regard to residue contained in the said settlement is void for uncertainty, and the residue belongs, whether as legitim or executry, to the claimants, the deceased's only children and sole next of kin. (5) On a sound construction of the said settlement, the bequest in favour of the said Mrs B does not include more than one-half of the moveable or personal estate of the deceased, after deducting debts and the expenses of administration.”
Authorities quoted; as to the will being holograph— Maitland's Executors, 10 Macph. 79; as to the will being superseded— Colquhoun v. Campbell, 5 June 1829, 7 S. 709; M'Laren, vol. i. 257, et seq.
The Lord Ordinary pronounced the following interlocutor:—
“ Edinburgh, 22 d January 1874.—The Lord Ordinary having heard parties' procurators, and having considered the closed record, joint minute for the claimants, and whole process—Finds that the last will or testament executed by the deceased A, dated 30th January 1869, was revoked by the subsequent birth of the claimants C and D, both children of the said A, at least in so far as the said will or testament disposes of or provides for the distribution of the personal means and estates of the said A: Finds that there is no sufficient evidence that the said deceased A intended the said last will or testament to take effect notwithstanding the birth and survivance of his said children: Finds that the said A must be held to have died intestate so far as regards the beneficial distribution of his said personal means and estate. Therefore, and in accordance with the above findings, ranks and prefers the claimant Mrs B, the widow of the said deceased A, to one third of the free moveable means and estate of the said A, and ranks and prefers the claimants C and D, the children of the said A, to the remaining two thirds of his free moveable means and estate, and decerns: Finds the pursuers and real raisers entitled to retain out of the fund in medio the whole expenses incurred by them, as the same shall be taxed by the Auditor of Court, and quoad ultra finds no expenses due to or by any of the claimants, and decerns.
Note.—With the admissions contained in the closed record, and with the further admissions contained in the joint minute, No. 12 of Process, all parties have renounced further probation, and accordingly the Lord Ordinary deals with the competition as with a concluded cause.
The question is whether the deed, partly written and partly lithographed, bearing to be the will or testament of the late Mr A, is to receive effect, and is to regulate the distribution of his personal means and estate, which amounts to upwards of £23.000. The competition is between the widow of the deceased and the two children surviving of the marriage. If the will receives effect the widow will take one-half of the free estate, and the other half will be in arbitrio of the trustees or executors, the children being altogether excluded, or left to betake themselves to their legal claim of legitim.
Page: 261↓
Certain objections, chiefly of a technical kind, have been stated to the validity of the will; but the Lord Ordinary does not find it necessary to pronounce any judgment upon these technical objections, because he thinks that the implied revocation of the will by the subsequent birth of the testator's two children is sufficient for the disposal of the whole cause.
The Lord Ordinary may say, however, that his impression is that the technical objections would not per se be fatal to the will. He thinks that although all the formal clauses of the deed are lithographed it is in substance and in law the holograph deed of the late Mr A. The essentials of the deed are in his handwriting, and in accordance with various decisions the fact that the holograph of the maker is filled into a printed form does not destroy the holograph character of the deed. The name of the granter, the names of the trustees, and the effective words disposing of the whole estate, are all in the handwriting of the testator himself.
If this view be correct, the objections to the testing of the deed are obviated, and as a holograph deed does not require instrumentary witnesses, the objection that Mrs B herself is one of the instrumentary witnesses seems to be sufficiently met.
The vitiation in the date is also immaterial, for a date is not essential to a will, and the date of actual signing is admitted by the parties.
In the Lord Ordinary's view the true question in the case is whether the will was revoked by the subsequent birth of the testator's two children, C and D. The Lord Ordinary thinks it was.
When the will was made the testator had no children. There had been two children of the marriage, but they had died in infancy, and it seems impossible to read the deed without feeling that it is the will of a person who did not expect to leave children, or rather that it is a will made for the case of the testator dying without leaving children. But this is just the condition si sine liberis which is sometimes expressed, but which the law holds to be always implied in testamentary writings like the present, and the Lord Ordinary reads the will just as if it had contained the words, ‘in the event of my dying without leaving lawful issue.’
C. the testator's eldest daughter, was born on 24th January 1871, being two years after the date of the will, and his second daughter, D, was born on 8th November 1872, and the Lord Ordinary does not doubt that the birth of these children, if the testator had not died immediately or soon thereafter, would operate, in the absence of contrary evidence, as an implied revocation of the will. The cases will be found cited in Mr M'Laren's book on Wills, vol. I., p. 257 and subsequent pages. The leading case is that of Colquhoun v. Campbell, 5 June 1829, 7 S. 709, but the principle has been recognised in many other cases.
The real difficulty in the present case arises from the fact that the testator survived the birth of his children a considerable time, and did not take any steps to alter his testament, for it seems to be the law that the presumption of revocation may be overcome by facts and circumstances showing that the testator, notwithstanding the existence of children, still intended the testament to take effect.
The Lord Ordinary thinks, however, that nothing but the very clearest evidence will overcome the presumption of revocation. To use the words of Lord Glenlee, it must be made “as plain as a pikestaff that the testator did not intend the succession to go to the child.” This has not been shown and cannot be shown in the present case. The testator was a comparatively young man, only 44 years of age when he died. He was in vigorous health, and although complaining for a week or two before his death, he was able to attend to business, and was actually out at two public meetings the very day upon which he died. Persons like the testator, and indeed other persons also, are very apt to delay adjusting their mortis causa settlements thinking that there is no hurry. The mere lapse of time per se goes for very little unless it is coupled with circumstances indicating an intention that the old settlement should stand. But the interval of survivance in the present case is comparatively short. Mr A only survived the birth of his daughter D about four months, and, so far from there being any indication of his intending the settlement of 1869 to stand, it is admitted that three months before his death he expressed his intention of making another settlement. His sudden death, apparently with only a few hours' warning, prevented this intention from being carried out, but the Lord Ordinary thinks it clear that there is no evidence whatever, but the reverse, that he intended to disinherit both his children.
The raisers are of course entitled to expenses, but in the circumstances the Lord Ordinary thinks that the claimants should each bear their own expenses. The present judgment was necessary for the exoneration of all concerned.”
This interlocutor has since become final.
Counsel for Pursuers and for the Widow— Trayner. Agent— P. S. Beveridge, S.S.C.
Counsel for Children— J. C. Lorimer. Agents— Gibson & Ferguson, W.S.