Scottish Court of Session Decisions

This was a petition by Mrs Margaret Inglia or Addison and others, widow and children of the deceased James Addison, to have the trust-deed executed by him declared a valid deed.

Page: 335↓

The petition was in the following terms;—

“That the said James Addison died at No. 632 St Vincent Street, Glasgow, upon the 31st day of December 1874. There was found in his repositories after his death a trust-disposition and settlement subscribed by him, and bearing to be attested by two witnesses subscribing. The subscriptions to said trust-disposition and settlement are as follows, viz.:—‘James Addison,’ ‘George Miller, witness;’ ‘John Alexander Rankin, witness’ The said subscriptions are the genuine subscriptions of the said deceased James Addison, the granter of the deed, and of George Miller, a partner of the firm of James Miller & Company, bolt and rivet manufacturers, 204 Stobcross Street, Glasgow; and John Alexander Rankin, sometime clerk in the employment of the said James Miller & Company, now in the employment of Messrs Wingate, Birrell, & Company, insurance brokers, 4 Exchange Buildings, Glasgow, the said instrumentary witnesses. The said trust-disposition and settlement has not been completed by the insertion of a testing clause. The date on which it was signed by the granter and witnesses fore-said is to the petitioners unknown, but it is believed and averred to have been executed on a day between the 1st day of September 1871 and the 30th day of April 1873.

The said trust-disposition and settlement was prepared on the instructions and employment of the said James Addison by Messrs Black & Honey-man, writers, Glasgow, and was engrossed by a clerk in their employment. In the draft of the deed as approved by the said James Addison, and in the engrossment as delivered to him for signature, his trustees are named and designed as follows, viz.:—‘David Inglis junior, farmer, Powdrake, near Grangemouth; Andrew Armour, manager of Messrs R. S. Newall & Company, wire rope manufacturers in Glasgow; and George Black, writer, Glasgow.’ But the names and designations of Mr Inglis and Mr Black have subsequently been deleted, and the testator has in his own handwriting substituted George Miller, of ‘James Miller & Co., Stobcross Street,’ as a trustee in place of the said David Inglis; and William Wylie, of Marshall & Wylie, tubemakers, Swanston Street, Glasgow, as a trustee in place of the said George Black. In a subsequent clause in said trust-disposition and settlement, the only clause in which the names of the trustees occur save that containing their nomination, the name ‘David Inglis junior’ is deleted, and the name ‘George Miller’ substituted in the testator's handwriting; and the name ‘George Black’ is also deleted, and the name ‘William Wylie’ substituted, also in the testator's handwriting. The said trust-disposition and settlement is produced herewith.

The said James Addison has left estate and effects, heritable and moveable. His surviving representatives are the petitioners, his widow the said Mrs Margaret Inglis or Addison, and his daughters Mrs Elizabeth Addison or M'Naught, Margaret Addison, and Martha Addison (who have attained to majority), and a son and daughter James Addison and Margaret Addison, who are in their tenth and eighth years respectively. By the said trust-disposition and settlement the said James Addison, inter alia, appointed his trustees, and the survivors and survivor of them, accepting, to be tutors and curators, and tutor and curator, to such of his children as might be in pupilarity and minority at the time of his death.

“That by section 39 of the ‘Conveyancing (Scotland) Act, 1874,’ it is enacted, that ‘no deed, instrument, or writing subscribed by the granter or maker thereof, and bearing to be attested by two witnesses subscribing, and-whether relating to land or not, shall be deemed invalid, or denied effect, according to its legal import, because of any informality of execution; but the burden of proving that such deed, instrument or writing so attested was subscribed by the granter or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall lie upon the party using or upholding the same; and such proof may be led in any action or proceeding in which such deed, instrument, or writing is founded on or objected to, or in a special application to the Court of Session, or to the Sheriff within whose jurisdiction the defender in any such application resides, to have it declared that such deed, instrument, or writing was subscribed by such granter or maker and witnesses.’

May it therefore please your Lordships to appoint this application to be intimated on the Walls and in the Minute Book in common form, and to be served upon the said James Addison and Margaret Addison and their tutors and curators, if they any have; to allow answers thereto within eight days, and on resuming consideration hereof, with or without answers, to allow the petitioners a proof of the averments contained in this petition, and thereafter to declare that the trust disposition and settlement above mentioned was subscribed by the said James Addison, the granter or maker thereof, and by the said George Miller and John Alexander Rankin, the witnesses by whom the said trust-disposition and settlement bears to be attested, and that the said trust-disposition and settlement is a valid deed, and entitled to effect according to its legal import; and to find the petitioners entitled to the expenses of the present proceedings out of the funds of the trust-estate of the said James Addison; or to do otherwise in the premises as to your Lordships shall seem proper.”

The Court ordered the petition to be amended to the effect of deleting the words “and that the said trust-disposition and settlement is a valid deed, and entitled to effect according to its legal import,” from the prayer of the petition.

After intimation and service in common form, the Court heard counsel on the question whether or not the testing clause could be filled up.

At advising—