Scottish Court of Session Decisions

Walter Whyte of Bankhead, in the county of Renfrew, died at Bankhead on 16th September 1880. He was proprietor of the lands of Cuthill, in Linlithgowshire, as well as of Bankhead, and was also pro indiviso proprietor of half the lands of Kenmure, in Lanarkshire, half the lands of Shettleston, in the same county, and of certain house property in Glasgow. He left personal estate considerably exceeding £20,000 in value.

Mr Whyte was married in 1859. By antenuptial contract he undertook to provide his wife, should she survive him, in an annuity of £400 and the liferent of Bankhead mansion-house, besides a sum for mournings, and the absolute property of his household furniture and plenishing. Mrs Whyte on her part accepted these provisions as in full of her legal claims.

Mrs Whyte survived her husband. There was no child of the marriage. Mr Whyte's heirs-atlaw were his sister Mrs Jane M'Nish Whyte or Hamilton and his nephew Mr J. F. Watson, son of another sister deceased. The former was decerned executrix-dative to him. After Mr Whyte's funeral a search was made in his repositories by Mr Walter Whyte Pollok, writer, his brother-in-law, Mr John A. Hamilton, writer, and Mr J. M. Hill, writer. The first-named of these gentlemen had prepared the marriage-contract of Mr and Mrs Whyte, and Mrs Whyte and he had been on intimate terms, but Mr Whyte had never spoken to him about making a will. On a search being made there were found in a bureau in the deceased's bedroom a cash-box containing money and some papers of small importance. This bureau was a chest of drawers with a desk on the top and a folding lid. It contained a secret drawer, in which were afterwards found some deposit-receipts for about £6000 and some certificates belonging to the deceased. In a room adjoining the bedroom was found a tin box, which contained the title-deeds of Bankhead, a water-commission bond for £2500, and a number of interest coupons, estate accounts, and business letters. In the parlour in which the deceased was accustomed to write his letters there was found a portable writing desk which he had had in daily use. In this desk were found a bank book, a cash book, and a number of vouchers and business letters. In this desk there was also found the following holograph document signed by the deceased:—“ Bankhead, 19th June 1873.—Notes of intended settlement by Walter Whyte of Bankhead.—first, I liferent my wife Mrs Margaret Pollok or Whyte in my whole estate,

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both heritable and moveable, burdened with an annuity of £300 sterling, three hundred pounds sterling, a-year to my sister Mrs Jane Macknish Whyte or Hamilton, widow of the late James Hamilton, writer in Glasgow, should my wife survive me—at the death of my wife said annuity to cease. In place thereof I leave to my said sister Mrs Jane Macknish Whyte or Hamilton, in liferent only, and to my nephew John Hamilton, writer in Glasgow, in fee, my pro indiviso half of the lands of Kenmuir, situated in the parish of Old Monkland and county of Lanark; likewise my pro indiviso half of the lands of Shettleston, situated in the Barony parish of Glasgow and said county of Lanark. To my nephew James Hamilton I leave my lands of Cuthill and Newmill of Breech, &c., situated in the parish of Whitburn and county of Linlithgow, subject to the liferent of his mother, the said Mrs Jane Macknish Whyte or Hamilton. I also leave to my nephew James Francis Watson, presently residing at Ardmore House, in the parish of Cardross, Dumbartonshire, my estate of Bankhead, situated in the parish of Rutherglen and county of Lanark; but I wish it expressly understood, that in the event of my said nephew James Francis Watson dieing without leaving any lawful mail heir of his body, then and in that event my said lands of Bankhead are to revert back to my said nephew John Hamilton; my moveable estate at the death of my said wife is to be equally divided between the families of my two sisters Mrs Frances Killian Whyte or Watson, now deceased, and the said Jane Macknish Whyte or Hamilton, excluding (excluding) the males in each of said families. I also exclude the jus mariti of their present or any future husbands; and as regards my two nieces Anna Maria Watson or Ewing and Margaret Buchanan Watson or Ellis, their respective shares are to be handed over to their marriage-contract trustees, to be invested by them for the sole behoof of my said two nieces Anna Maria Watson or Ewing and Margaret Buchanan Watson or Ellis, to be altogether quite exclusive of the jut; mariti of their present or future husbands. I also leave a legacy of £500 stg., five hundred pounds stg., to my nephew Walter Whyte Hamilton, said legacy to be paid him by my said nephew John Hamilton from the lands of Kenmuir and Shettleston upon his succeeding to them at the death of his mother Mrs Jane Macknish Whyte or Hamilton. I likewise leave the sum of one hundred pounds sterling to the Royal Infirmary in Glasgow, to be paid free of legacy-duty.” This document was lying flat and unfolded in the desk, almost at the bottom of one of the two compartments. The only property belonging to Mr Whyte to which it did not bear any reference was his share of certain house property in Crown Street, Glasgow. A part of that had belonged to him before the date of the document, and another part was acquired a few weeks before his death.

The liferent of the testator's whole estate bequeathed by the document above quoted, assuming it to be a valid testamentary document, being of much greater value than the provisions made for Mrs Whyte by the marriage-contract, the question arose between her and the heirs-at-law and next-of-kin of Mr Whyte whether the document in question was valid as the testament of Mr Whyte, and in December 1880 she raised this action to have it declared that the document was the last will and settlement of Mr Whyte, that she was entitled to a liferent of the whole estate burdened with an annuity of £300 to Mrs Hamilton, and to an accounting by Mrs Hamilton, as executrix, of her whole intromissions with the estate. The defenders called were the heirs-atlaw of Mr Whyte, his next-of-kin as representing him in moveables, and the executrix.

The pursuer in addition to the averments relating to the finding of the document as above described, averred in the 5th article of her condescendence that the signature was appended thereto, not at the time at which it was written, but on a day in August 1880, or at least on a day subsequent to June 1873. Further, she averred that the deceased on various occasions, and to various persons, spoke as if his affairs were regulated by will.

The pursuer pleaded—“(1) The document or writing condescended on being of a testamentary character, must receive effect as the last will and settlement of the late Walter Whyte, and regulate his succession.”

The defenders denied that the document of June 1873 was a valid testamentary writing. They also denied that the signature was appended to it at any other date than June 1873, and that the deceased ever spoke as if his affairs were regulated by will. They pleaded, inter alia, that the statements of the pursuer were irrelevant, and that the document in question was not a valid testamentary deed.

On 23d February 1881 the Lord Ordinary allowed a proof, appending this note to his interlocutor:—“The Lord Ordinary is not prepared to turn this action out of Court on the ground maintained by: the defenders, viz., that there is enough set forth in the document founded on by the pursuers to indicate that it is not a will. Documents more indicative of inchoate intention than this one have not in other cases been so summarily dealt with. The Lord Ordinary is of opinion that inquiry ought to be made as to the averments contained in the 5th and Gth articles of the condescendence, and also as to the averments by the defenders in answer to the 3d article; and such inquiry is in accordance with the usual practice of the Court where informal documents are propounded as wills. Either the facts connected with the time of writing the paper and of signing it, the place where it was found, and the verbal declarations of the writer in regard to it, were all ascertained by proof, or by admissions in special cases presented for the opinion of the Court, or probation was renounced before judgment was given, and the facts connected with these matters were held to be relevant and material in judgment whether the document was to be considered as a will.

“Thus, in the leading case of Munro v. Coutts, 1 Dow, 437, correspondence between the testator and his agents was admitted for this purpose, and the House of Lords thought that the Court of Session should have gone further and admitted parole evidence. Lord Eldon expressed himself thus:—‘The written correspondence on this subject had been admitted as evidence, and he thought properly admitted, as the paper was of a doubtful and ambiguous character and required explanation; but they should have gone farther. Upon what principle did they not let in such

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parole testimony as that of M'Intosh and George Munro as to the conversation that took place?’ In the case of Scott v. Sceales, Feb. 5, 1864, 2 Macph. 613, the Court ex proprio motu appointed an examination to be made of the testator's agent as to all matters of fact bearing on the question, What are the testamentary papers of the deceased?’ In Lowson v. Ford, March 20, 1866, 4 Macph. 631, the parties adjusted a joint minute setting forth the facts which they thought material, and renounced further probation, but the Court were not satisfied with the information so given, and pronounced an interlocutor allowing proof of all facts bearing on the question, What are the testamentary papers of the testator?' The facts in the case of Cunningham v. Murray's Trustees, March 15, 1871, 9 Macph. 713, were set forth in a special case, as they were likewise in the case of Forsyth v. Forsyth, March 13, 1872, 10 Macph. 616.

The practice thus established by these decisions is in accordance also with that followed in theProbate Court in England, and is well illustrated by a decision upon a document very similar in its terms to that founded upon in the present action. It began thus—‘This is a memorandum of my intended will.’ But said Sir John Nicholl—‘It goes on throughout in dispositive terms; it appoints executors, is dated and signed by the deceased himself, and the character of the signature is different from that of the body of the instrument. Still the term, “Memorandum of my intended will,” would raise a sufficient doubt to let in evidence of circumstances—whether it was finished in order to have effect, or only as a deliberative memorandum. Parole evidence then being let in, the history of the deceased and of this paper may give to his intentions a more decided character’— Barwick v. Mullergs, 2 Hagg. Eccl. Rep. 225. Other cases to the same effect, which begin with such words as these—‘Heads of will,’ ‘A plan to be afterwards drawn out,’ are mentioned and commented upon in Williams on Executors, vol. i. 360.

The Lord Ordinary expresses no opinion at this stage of the case upon the merits, but looking to the opinions of the Lord President and Lord Kinloch in the case of Forsyth, the averment in the 5th article of the condescendence becomes very material. If the signature was appended at a date subsequent to the writing of the body of the document, this perhaps may be indicated by a difference in the character of the handwriting or of the ink. The document should be exhibited at the proof.”

Proof was accordingly led, when the facts above narrated were elicited. It also appeared that Mr Whyte had on one occasion in 1877 said to his brother-in-law Mr. Pollok that he supposed he could increase the annuity of his wife, but that he had never asked him to make out any deed. The only evidence in support of the averment that the signature had been appended to the document in dispute at another date than June 1873 was that of a niece who resided in the house, and who had seen him bring a paper like it down from his bedroom to the parlour in August 1880, on which paper he wrote something.

The document itself was exhibited at the proof and at the debate in the Inner House. The signature, so far as could be gathered from inspection of the document, was written with the same pen and at the same time as the rest of the deed.

The Lord Ordinary pronounced this interlocutor—“Finds that the writing dated 19th June 1873, and registered in the Books of Council and Session the 22d September 1880, entitled ‘Notes of intended settlement by Walter Whyte of Bankhead,’ is not the last will and settlement of the said deceased Walter Whyte, and cannot receive effect as such: Assoilzies the defenders from the whole conclusions of the action, and decerns.”

He added this note—“It is with reluctance and somewhat with regret that the Lord Ordinary feels himself constrained to pronounce the foregoing inteolocutor. He is satisfied that Mr Whyte intended very largely to increase the provision in favour of his widow. But the dead hand has not in this case executed its purpose effectively. Mr Whyte was a landed proprietor who had no profession or business to occupy his attention. Like most people in Lanarkshire, he went to Glasgow on the Wednesdays without having any particular business to do. There he, upon each of these occasions (and this is important) saw his brother-in-law Mr Walter Pollok, a writer in Glasgow, to whom he never gave any instructions for the preparation of a will. In his own home he occupied himself with the management of his property. The proof discloses nothing about the rooms in his house, with the exception of three. He had in his bedroom a bureau, in which was found the money that he left at his death, and the deposit-receipts for money in bank. Off this room there was another, in which there was the charter-box containing his title-deeds and other valuable documents. There was, thirdly, a parlour in the lower storey, in which there was a writing desk, which usually rested upon the sideboard. In this parlour Mr Whyte wrote all his letters upon this desk, the key of which he carefully retained in his own possession.

Upon the day of his funeral his brother-in-law Mr Pollok, his nephew Mr John A. Hamilton, and his friend Mr John M. Hill, examined his repositories. They found no writing in the bureau in the bedroom, nor in the charter-box, of a testamentary character. But in the desk they found the document which is now propounded as a will. It was lying flat in the bottom of a compartment in this desk amidst miscellaneous documents, and along with Mr Whyte's cash-books.

The question now is, whether this document can be treated as a will? The Lord Ordinary is of opinion that it cannot. In its favour there are the following circumstances:—First, That it is proved that Mr Whyte intended to increase the provisions in favour of his widow; and he did so by the document in question, by giving to her the liferent of his whole estate, under the burdens therein mentioned. Secondly, That the language of the will is dispositive and absolute. Thirdly, It is carefully written out, and must have been copied from a draft which he had made, and this is indicated very strongly by the way in which he writes the word ‘excluding.’ Not being satisfied with it as first written, he attempts to correct the writing, and then repeats the word, indicating thereby his determination

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to make the matter quite clear and distinct; and Fourthly, he signs this document.

There can be no doubt whatever that if this document had stood alone, without its title, it would have been a perfectly valid will and settlement of Mr Whyte's estates. But the following are the grounds upon which the Lord Ordinary considers that it cannot be accepted as such:—First, The date of the document is 19th June 1873, and the title is, Notes of intended settlement by Walter Whyte of Bank-head.’ These words indicate simply this, that they were merely jottings, put down by Mr Whyte as of a settlement which he intended to make. The Lord Ordinary has endeavoured to read the title in this way—‘I intend my property to be disposed of as follows,’ or, This is my intention about the settlement of my property.’ But with every desire to give effect to an apparently rational settlement, he is unable to come to this conclusion. Because, secondly, in the year 1877 Mr Whyte asked his brother-in-law, Mr Pollok whether he could increase the annuity to his wife. Now, if he in the year 1873 had made a will of the whole liferent of his estate to his wife, this was a very odd question. It must be deduced from the fact of his putting such a question that he had forgot entirely what he had done in 1873, and that his Notes of an intended settlement' were never meant by him to be anything more than notes which he might carry into effect at some time or other when he had fully made up his mind upon the subject, by asking his brother-in-law or his nephew to prepare a settlement in accordance therewith, which he never did. Thirdly, this is not a case where the document is first written out and then after an interval the signature is appended. If this state of the facts existed, it might justly be concluded that what was first intention had been carried into act and had become a positive bequest. Some attempt to prove a case of this kind was made on behalf of the pursuer, but it was unsuccessful. On a day in the month of August 1880, one month before Mr Whyte died, it is proved by Miss Jamieson that Mr Whyte came down stairs with a sheet of paper in his hand similar to that now propounded as his will; that he took it to the sideboard on which his desk lay; that he wrote something upon that sheet of paper and put it into his desk, and that what he wrote would not occupy more time than would be necessary for his signature. It is suggested that he then and there brought the document in question from upstairs to the parlour, and then and there adhibited to it his signature in the parlour in 1880, the body of the document having been written in 1873. The Lord Ordinary entirely rejects this suggestion. The same pen which wrote the body of the document in 1873 wrote at the very same time the signature appended thereto; and it must have been some different document altogether upon which Miss Jamieson saw Mr Whyte write on the occasion to which she speaks. Lastly, the place in which the document was found cannot be overlooked as an element in the case. The alleged will professed to dispose of the whole of the estate; and one would naturally suppose that if it was intended to have this effect it would be found in the bureau in which he had put away the deposit-receipts, and where he kept his money, or in the charter-chest where he kept his titles and bonds. But it was not so. The paper is found in a desk, containing, no doubt, cash-books in daily use, but also the ordinary loose papers commonly seen in a man's writing-desk—drafts of letters, jottings, papers containing writing, papers without any, and envelopes; in short, the alleged will had very bad company. and its character must be judged of very much according to that of the company it had. The conversation with Mr Pollok about increasing his wife's annuity in the year 1877 in truth shows that Mr Whyte had forgotten altogether ‘the notes of intended settlement’ which was lying under a heap of miscellaneous papers in his writing-desk. The cases of Forsyth and Cunningham, referred to in the Lord Ordinary's note to the interlocutor of 23d February 1881, indicate that in circumstances such as occur in the present case the use of peremptory, absolute, and diapositive words, and the signing the name to notes and jottings, are unavailing against evidence that the writer did not intend these papers to be the expression of his final will; and there is such evidence here. The expenses of this process must be borne by the estate of Mr Whyte, he himself having caused a litigation on the subject by leaving such a document in his repositories.”

The pursuer reclaimed, and argued—Admitting that the proof has failed to establish that the document in dispute was signed at another date than that at which the body of it was written, the proof at least put the Court in possession of all the facts in the case which were ascertainable. The document must be held to be the testator's last will. It was carefully written by one who from the appearance of the document was plainly not much used to writing. It looked, indeed, as if it had been written from a draft. Again, it was dated and signed, and in the words of Lord Benholme in Lowson v. Ford, 20th March 1866, 4 Macph. 631—“Does anyone who makes a mere memorandum date or sign it? Is it to remind him of his own handwriting or to record that on a particular day of a particular year he had such and such an inchoate purpose?” No doubt his Lordship was dissenting in that case,' but the remark was quite applicable. The opinion of Sir John Nicholl in Barwick's case, 2 Hagg. Eccl. Rep. 225 (1829), that where you have the document signed it is prima facie a will, gives a canon which the reclaimer would readily accept—see also the previous case of Mitchell (1828), 2 Hagg. Eccl. Rep. 74. Besides, the document contained words of present disposition, and so far as it dealt with heritage a careful destination. Again, if this will be not given effect to, the result will be a decision in favour of intestacy—a conclusion which the Court is always slow to reach. The cases quoted on the other side are all cases in which the question lay between the disputed document and a formal will. Such a case was that of Forsyth v. Forsyth, 13th March 1872, 10 Macph. 616. There the only thing in favour of the “draft of codicil,” as the testator called it, was that it was signed, while in this case there was really nothing but the words “Notes of intended” against the pursuer. These words are quite susceptible of the meaning that if the deceased made a formal settlement

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these were to be the terms, but none the less was the document his will if the formal settlement was never made— Hattatt v. Hattatt, 4 Hagg. Eccl. Cases, 211. A settlement was always “intended” while the testator lived, and then became his settlement by his death without having altered it. Lastly, this was certainly not a case like Monro v. Coutts, 1 Dow 437, which was a case of a document intended only as an instruction to an agent.

Argued for respondents—Just because the Court will always try, if possible, to give effect to the will of the deceased, it is always necessary to be sure that what is propounded as a will is really the expression of completed and deliberate intention. “Notes” of an “intended” deed are certainly words not readily indicating that such intention has been arrived at. The heading is part of and controls the document— Lindsay, 2 L.R. Prob. and Div. 459. In the case of Barwick, supra, Sir John Nicholl required and proceeded on parole evidence as to the circumstances connected with the execution of the “Memorandum of my intended will.” Now, here the parole evidence absolutely failed the pursuer—see Williams on Executors, i. 359, and cases there cited. In the case of Mathews there cited the Court pronounced for intestacy as against the document propounded as a will. The words of the heading there were—“Plan of a will proposed to be drawn as the last testament of William Mathews, and executors nominated to see this complied with”—see also Hattatt, supra, where the death was sudden, and Coppin, 4 Hagg. Eccl. Cases, 361, and the Scotch cases above cited. In one of these ( Forsya's case) the Lord President and Lord Kinloch both observed that some people sign even drafts. Again, there is a blank in gremio of the document, as if Mr Whyte had meant to put something in immediately after the heading. This paper might have been intended to be shown to an agent, and to be made the will of the deceased— Cunningham v. Murray's Trustees, 15th March 1871, 9 Macph. 713; Stainton v. Stainton, 17th Jan. 1828, 6 S. 363.