Scottish Court of Session Decisions

Lord Justice-Clerk—The main question which we have to consider is, Whether the writing of 6th February 1878 ought to receive effect to the extent to which it differs from the subsequent writing of 16th March? I cannot say that this is by any means clear, but we are told that we have before us all the materials for deciding the question which can be obtained.

The difficulty lies in this, that there may be two explanations of the discrepancy between the informal writing of 6th February and the more formal, thought also informal, writing of 16th March. Either in writing out with her own hand the later codicil the testatrix may have forgotten or omitted mention of Mrs Conway Cooke, or in the interval she may have altered her intention. I am inclined to think that this writing of 6th February was a testamentary writing, and having been found in the repositories of the testatrix at her death it must receive effect. It starts with testamentary words and is signed by the testatrix. We cannot treat it as a mere draft or jotting, unless there is something to take it out of the category of a testamentary writing. There is nothing but the fact that the other testamentary writings were lodged with her agents. This is an indication which might be important in connection with other circumstances, but of itself it is not conclusive.

If, then, the writing is to be regarded as testamentary in itself, we have to consider the effect upon it of the subsequent writing of 16th March, which was also informal, and which contains some provisions identical with those in the former writing and some different. In my apprehension it is not unlikely that the testatrix intended that the later writing should supersede the former, but I am of opinion that there are no materials from which we could with certainty or safety hold that the later writing was a revocation of the legacy to Mrs Conway Cooke.

It is important to notice that we are not dealing with a catholic and formal settlement supervening—both the writings of 6th February and 16th March are informal writings, codicils to a prior settlement. If the legatees under the two had been wholly distinct, I should have had no doubt that both must receive effect. On the whole I am disposed to sustain the claim of Mrs Conway Cooke to the legacy of £500.

In regard to the question of duplication, I think there is no case for that. I think the testatrix intended her last expression to be conclusive as to the amount of the legacies therein named.

Lord Gifford—I have come to the same conclusion.

There is certainly a delicacy in taking out of the writing of 6th February one bequest and giving effect to it, and holding the other bequests as superseded by the later writing. Still I do not think it safe to refuse to give effect to the legacy to Mrs Conway Cooke on the mere conjecture that the testatrix intended to revoke it.

We start with a regularly tested deed of settlement, in which the testatrix contemplates that she may leave legacies by subsequent writings, and decides in a certain way what are to be the requisites of informal writings which are to receive effect. She says that legacies are to receive effect “which I may leave by any codicil hereto, or by any writing under my hand, or by any memorandum or directions holograph of or signed by me, clearly expressive of my will and intention, however informal.” Now, I take it that if this lady had died leaving nothing but this writing of 6th February, it must have received effect, or if she had died leaving this writing and nothing else but the codicil of 22d May 1877, it must have received effect along with that codicil. It fulfils the conditions required by the settlement. It is holograph, it is signed, and it is clearly expressive of the intention of the testatrix. The meaning is—whereas by formal writings I left certain legacies to particular friends, I wish those sums not to be those formerly mentioned but what I now mention. I think the words used are quite sufficient testamentary words as expressing her intention at that date. Then come the legacies, certain legatees under the former codicil are to receive increased legacies, and then certain other legatees are mentioned, who are not mentioned in the former codicil. Mr M'Laren in his argument called the writing a memorandum, but that does not depreciate its effect. Memoranda signed by herself are just what the testatrix says in her settlement shall receive effect. Then comes the writing of 16th March 1878, in which she repeats all the legacies but one which are contained in the writing of 6th February, revokes the legacies given to the same legatees by the codicil of 22d May 1877, and gives a number of additional legacies to persons whose names do not appear in either of the former writings.

I think that all three writings must be taken as effectual testamentary memoranda. I cannot exclude any of them as forming no part of the testamentary deeds left by Miss Dunsmure. If I could gather that the legacies which are repeated were intended to be cumulative, I should give effect to them as cumulative legacies. If, as I think is the case, they are mere repetitions of the same legacy, then the legatees will not be entitled to double payment. But when I find one person whose name is in the writing of 6th February and not in the last writing, I do not find sufficient reason for excluding her simply because her name does not so appear. Take it that the bequest to her was made in a separate memorandum—that she had a codicil to herself—I could not deny her right to have it. We see from other writings that the testatrix knew how to revoke when she wished to do so; she has not done so with regard to this legacy, and therefore I think we should answer this question to the effect of sustaining the legacy to Mrs Conway Cooke.

Lord Young—(who sat in this Division in the absence of Lord Ormidale)—This is the shortest case in the world, but the point which arises is one of some difficulty. The first question which has been put to us is the material one. Now, in my opinion, it is always idle to consider whether any instrument ever was an effectual testamentary

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