Scottish Court of Session Decisions

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Cite as: [1875] ScotLR 12_384, [1875] SLR 12_384

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SCOTTISH_SLR_Court_of_Session

Page: 384↓

Court of Session Inner House Second Division.

Friday, March 12. 1875.

12 SLR 384

Special Case—Blackwood & Others.

Subject_1Succession
Subject_2Testament.

Facts:

Circumstances is which the last will of a testator was held cancelled, and a prior will was held confirmed, in accordance with an implied direction to that effect contained in an undated letter which was found along with the two wills in the repositories of the deceased, and which declared that the later will was to take effect only in a certain event, which did not occur.

Headnote:

John Blackwood, surgeon, Catrine, Ayrshire, died in January 1875, unmarried and without issue. He had for many years resided on the most friendly terms with his only brother William, who was also a bachelor. In the repositories of the deceased were found lying together two holograph testaments and a holograph letter addressed to his brother. By the earlier of the testaments, which was dated 15th June 1859, his brother was left sole executor and universal legatory, under burden of payment of debts and a legacy to his servant. The later will was dated 1st September 1871, and by it the deceased appointed John Beveridge and Alexander M'Master his executors, and directed a new distribution of his moveable estate, making no mention of his brother. The holograph letter was undated, and was in these terms:—“Dear Brother,—You will perceive I have made the will very simple instead of entering them as legacies I would wish as soon as convenient to make the following donations from the estate £100 sterling to the Catrine Public School the money to be safely invested and the interest applied annually in giving prizes to the scholars £10 sterling to the Catrine Public Library £5 to the Catrine Funeral Society £5 to the Catrine Mortcloth Society (if distinct) from the Funeral Society £5 to Robert Pollock £10 to Charles Pollock.

“Do not delay making a will for yourself. You may perhaps find another drawn as if I happened to outlive you you can destroy it. I beseech arrange and part calmly with Janet the servant and besides the legacy you will require to pay her wages and give her a suit of mourning. (Signed) John Blackwood.”

In these circumstances, the said William Blackwood, brother of the deceased (the first party), and the said John Beveridge and Alexander M'Master (the second parties) asked the opinion and judgment of the Court on the following queries:—“(1) Whether the party of the first part is entitled to administer the moveable estate of the deceased as executor under the testament of 15th June 1859? or, (2) Whether the parties of the second part are entitled to administer said estate as executors under the testament of 1st September 1871? (3) Whether, in the event of the estate falling to be administered by the first party, he will be bound to give effect to the undated letter by the testator before mentioned, and pay the legacies therein set forth? and whether he will be bound to pay the legacies set forth in the testament of 1st September 1871? and in the cases where there are legacies to the same parties both in the said letter and in the testament of September 1871, he will be bound to give effect to the letter or to the said testament, or to both? (4) Whether, in the event of the estate falling to be administered by the parties of the second part, they will be bound to give effect to the undated letter? and in the cases where there are legacies to the same parties both in the testament and in the letter, they will be bound to give effect to the testament or the letter, or to both?”

At advising—

Judgment:

Lord Justice-Clerk—This case turns upon the construction of the holograph letter. There is some difficulty in ascertaining its date and its precise meaning. It plainly alludes to the possibility of two wills being left by the deceased. The will first referred to in the letter is evidently the will first in date, and the letter qualifies it by additional legacies. The legacy left by that will to the servant Janet is implied in the letter, as already made. Then, in the second part of the letter the possibility is referred to of another will being found, “drawn as if I happend to outlive you,” and, it is added, “you can destroy it.” Is this to be held as a direction to cancel the second will? Clearly that is the only meaning of the words. I am of opinion that the whole holograph letter must be taken as cancelling the second will, and as confirming the first will, and qualifying it by additional legacies.

Lord Neaves—In the first paragraph of this letter a will in esse is referred to. Then, in the second paragraph another will is referred to as at least in contemplation, and is described as drawn on the basis of the testator outliving his brother, which will, the letter says, “you can destroy.” He does leave another will, which clearly answers to the description given in the letter, and makes no mention of his brother. The explanation is obvious on this footing, and authority is clearly given to treat this second will as a non-entity.

Lord Ormidale—Three testamentary writings were left by this testator. The question is—What was his real intention? I construe the holograph letter as tantamount to a declaration in the second

Page: 385↓

will that it was to take effect only in the event of the testator outliving his brother. This seems to me to be the natural construction of the letter and all the other circumstances of the case are perfectly in coincidence with this view.

Lord Gifford—I find no room for doubt in this case. I read the letter as if it had been wrapped round the two wills, declaring that the one will was to take effect in one case, and the other will was to take effect in another case. The expression in the second part of the letter, “drawn as if I happened to outlive you,” clearly means “drawn in such a manner as if I happened to outlive you.” The letter refers to certain donations to be added to the legacy left by the first will to the servant Janet; and it is worthy of notice that several of the legacies left in the second will are the same as those mentioned in the letter.

The Court pronounced the following interlocutor:—

“The Lords having heard counsel on the Special Case, are of opinion and Find that the party of the first part is entitled to administer the moveable estate of the deceased, as executor under the testament of 15th June 1859, and that he will be bound to give effect to the undated letter by the testator, and to pay the legacies therein set forth, and that he is not bound to pay the legacies set forth in the testament of 1st September 1871; Allow the expenses incurred by the parties to the Special Case to be paid out of the moveable estate of the deceased, and remit to the Auditor to tax the same and to report, and decern.”

Counsel:

Counsel for First party— D. Crichton.—Agents— D. Crawford & J. Y. Guthrie, S.S.C.

Counsel for Second parties— Rankine. Agent— David Milne, S.S.C.
1875