Scottish Court of Session Decisions

Section 39 of the Conveyancing Act 1874 provides that “No deed, instrument, or writing subscribed by the grantor 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 grantor 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 grantor or maker and witnesses.”

This was a petition for declarator that the will and codicil thereto of George Junior Browne were duly subscribed. The petition was presented by the trustees and executors of Mr Browne. They stated that Mr Browne died domiciled in Dunedin, New Zealand, in March 1880, survived by a widow and a pupil daughter, who at the date of the petition were both resident in England, and that he left a will dated 21st February 1880, and a codicil thereto dated 5th March of the same year. By the said will and codicil the testator, after bequeathing certain legacies, directed his trustees and executors to pay the income of the residue of his estate to his widow during her life, and to hold the residue in trust for his children till majority, or marriage in the case of daughters. Their other statements were as follow:—Besides the real and personal estate in New Zealand possessed by the testator, he had a right to a share of certain heritable estate in Scotland still held by his father's trustees. The testator also had right to some personal estate in Scotland. The deed was deposited, in pursuance of the law of New Zealand, in the office at Dunedin of the Supreme Court of New Zealand, where it still remained. That Court would not allow the deed to be removed from its office, so that it could not be produced in Great Britain. The petitioners produced a facsimile of it, along with an affidavit by the registrar of the Court at Dunedin as to the description and deposit of the deed, and as to its not being removable, and also bearing that the facsimile was correct. Probate of the will and codicil was, on the 18th March 1880, granted in the Supreme Court of the colony of New Zealand to the three trustees, and confirmation in their favour of the Scotch personal estate was granted to them by the Commissary of Edinburgh on the 27th January 1881. The will and codicil were written on six separate sheets of brief paper, attached together at the corner by a silk thread. The will was written on five sheets, and the codicil partly on the fifth and partly on the sixth, only one side of each of the six sheets being written upon. The attesting witnesses to the testator's signature of the will, one of whom was also a witness to his signature of the codicil, signed on each sheet, except the fourth, of the will, adding their designations to their signatures on the last sheet, but the testator signed only on the last sheet at the end of the will. Neither the testator nor the witnesses to his signature of the codicil signed at the foot of the first sheet of the codicil, which was the fifth of the deed, but all signed the second sheet at the end of the codicil, which was the sixth and the last of the deed. The witnesses here also added their designations. The will was subscribed of the date it bore.

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The deed, although written on six sheets, thus only bore the subscription of the testator on the fifth sheet at the end of the will, and on the sixth sheet at the end of the codicil.

The petitioners prayed the Court to allow them a proof of their averments, and thereafter to find and declare that the will and codicil above mentioned were subscribed by the said George Junior Browne as maker thereof.

No answers were lodged by any party.

The Court allowed a proof, and granted a commission to take evidence in New Zealand. The evidence bore out the statements above narrated, and contained the depositions of the instrumentary witnesses to the will and codicil, who also spoke to the truth of the facsimile of the will and codicil produced.

The Titles to Lands Consolidation (Scotland) Act 1868, by sec. 20, provides that a conveyance of heritage shall not, from and after the commencement of the Act, be invalid by reason of the absence of the word “dispone” or other words of de præsenti conveyance, “and where such deed or writing shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain, with reference to such lands, any word or words which would if used in a will or testament with reference to moveables be sufficient to confer upon the executor of the granter or upon the grantee or legatee of such moveables, a right to claim and receive the same, such deed or writing, if duly executed in the manner required or permitted in the case of any testamentary writings by the law of Scotland, shall be deemed and taken to be a general disposition of such lands within the meaning of the 19th section hereof, by the granter of such deed or writing in favour of the grantee thereof, or of the legatee of such lands, and shall be held to create, and shall create, in favour of such grantee or legatee, an obligation upon the successors of the granter of such deed or writing to make up title in their own persons to such lands, and to convey the same to such grantee or legatee; and it shall be competent to such grantee or legatee to complete his title,” &c.

Argued for petitioners—The deed ought now to be regarded as a probative deed according to Scotch law. Owing to an informality in its execution it was not originally a probative deed, but the defect had now been cured by proof, in accordance with the provision of sec. 39 of the Conveyancing Act 1874. Sec. 20 of the Act of 1868, supra cit., had no direct reference to foreign deeds, and so did not affect the law already in existence as to foreign deeds. It was therefore necessary to proceed under the Conveyancing Act of 1874.

Authorities— M'Laren v. Menzies, July 20, 1876, 3 R. 1151; Studd, Dec. 10, 1880, ante, vol. xviii. p. 177, 8 R. 249.

The Court, after hearing counsel, were of opinion that the will being valid according to the law of New Zealand, was effectual to convey Scotch heritage without any process under the Conveyancing Act of 1874, but granted the prayer of the petition, on the ground the petitioners being trustees were entitled to act with extreme caution.