Scottish Court of Session Decisions

This was a Special Case between parties interested in the succession to Miss Agnes Christian Simson. The facts as stated in the Case were as follows:—Miss Simson died at Stuttgart, on 16th November 1880. At the date of her death she was a domiciled Scotchwoman, and her next-of-kin were her brothers George Sutherland Simson and Henry Bruce Simson, and her sisters Miss Frances Katherine Simson and Mrs Mary Simson or Hamilton.

In addition to a writing which the parties to this case were agreed was invalid according to Scotch law, Miss Simpson left a writing bearing to be a will. It was in the following terms:—“1. 500, Kitty; 500, John. 2. 500, Tiny—residuary legatee; 800, Mary Hamilton; 1300, F. K. S. Tiny, pearl brooch and earrings. I divide all equally. Will make new will. Is it not better to divide all between Henry, Kate, Mary, and if I get well I can alter it all, I have left it so late? I leave Tiny residuary legatee. I just divide the ‘whole 8000’ equally between Kate, Mary, Henry. Somebody must be residuary legatee for all my things; it is called ‘things’ I think—residuary legatee, Tiny. This is my meaning—to divide the money between Kate, Henry, Mary, and all rest to Tiny—residuary legatee for all left. Add, I leave £100 for funeral xs. This must be taken off the whole acct. before dividing. I leave £300 to Henry for paying debts that may occur. I leave £400 to F. K. Simson—all this to be deducted by Henry before dividing: that is all.—A. C. Simson. F. K. Simson, witness; Helen Boucher, lady's-maid, witness; H. K. Linton, witness ( scripsit). Novber. 9th.”

The date “9th Novber.” was 9th November 1880, a few days before Miss Simson's death. At that date there were residing with the testatrix at Stuttgart (besides her maid Helen Boucher, who signed as a witness) her brother Henry Bruce Simson and her sister Frances Katherine Simson, who also signed as witnesses. The document was written on that date in pencil 'by Henry Bruce Simson at the request and to the dictation of the testatrix while she was lying in bed. The signatures of the testatrix and the witnesses were written in ink at the same time immediately after the testatrix had signed. The parties stated that they were satisfied that the writing was so subscribed by the testatrix and the three witnesses, and dispensed with any proof or declarator on the point.

The person designated in the body of the writing as “Henry” was the brother of Miss Agnes Christian Simson, Henry Bruce Simson, the writer thereof. The person designated as “Kate,” and also as “F. K. Simson,” was the sister of Miss Agnes Christian Simson, Frances Katherine Simson. The person designated as “Mary” was the other sister of Agnes Christian Simson, Mrs Mary Simson or Hamilton. The person designated as “Tiny” was Agnes Elizabeth Simson, a minor, youngest daughter of Henry Bruce Simson, and the niece and godchild of Agnes Christian Simson,

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and who was called by her aunt and other members of the family by the name of “Tiny.”

There being no executor-nominate, Frances Katherine Simson was decerned executrix qua one of the next-of-kin by the Sheriff of Fife on 13th January 1881. She thereafter gave up on oath an inventory of the personal estate, amounting to £8901, 6s. 5d., and was confirmed executrix. Miss Simson left no heritable estate.

Frances Katherine Simson, Henry Bruce Simson, and Agnes Elizabeth Simson, being the parties of the first and third parts, maintained that the writing was a valid testamentary writing, and entitled to receive effect as the last will and testament of Miss Agnes Christian Simson. Major George Sutherland Simson and Mrs Mary Simson or Hamilton, being the parties of the second part, on the other hand, maintained that it was invalid and ineffectual as a will or testamentary writing, in respect—1st, That the body of the writing was in pencil; 2d, that on the face of the writing it was not a completed act, but merely notes for a will, or an expression of intention to make a will; and 3d, that two of the witnesses Frances Katherine Simson and Henry Bruce Simson were beneficially interested as legatees under it, and therefore not competent witnesses.

The questions of law for the opinion and judgment of the Court were (so far as they need here be detailed)—“(1) Whether the said writing is invalid as the last will and testament of Miss Agnes Christian Simson, in respect that the body thereof is written in pencil, and only the signatures and date thereof in ink? (2) Whether, having regard to its terms, the said writing is a completed will or testamentary writing? (3) Whether the said writing is wholly or partly invalid as the last will and testament of Miss Agnes Christian Simson, in respect that two of the witnesses, Miss Frances Katherine Simson and Henry Bruce Simson, are beneficially interested therein as legatees? and if partly, to what extent and effect?”

After hearing counsel for the parties, the Second Division appointed it to be argued before themselves and three Judges of the First Division on the question of the effect on the validity of the writing of the instrumentary witnesses being legatees under it.

Argued for the parties of the first part—The overwhelming weight of authority was in favour of the view, that having an interest in, or taking benefit under, a deed was no disqualification to being an instrumentary witness to it. This had been decided in various aspects, and particularly in that presented in this case—that of the pecuniary interest of a legatee in a will—in one case where the interest was small— Graham v. Marquis of Montrose, 1685, M. 16, 887—as well as in another where it was large— Ingram v. Stevenson, 1801, M. “Writ,” Appx. 2—and the principle had been affirmed less distinctly in other cases— Scott v. Caverhill, 1786, M. 16, 779; Maclatchie v. Brand, 1771, M. 16, 776— rev. H. of L. 2 Pat. App. 312; Mitchell v. Miller, 1742, M. 16, 900. The case of Robertson v. Abercromby, 1627, M. 16, 879, in which the creditor in a bond had been held inadmissible as a witness to it, was different, for he was a direct party to the deed. In one case, indeed, interest of a witness as legatee had been held to invalidate a will quoad the legacy of that witness, though remaining good otherwise, but it stood alone, and would lead to absurd results if worked out in practice— Lord Innerleith v. B. of Glasgow, 1613, M. 16, 876. If not in the common law, this rule was not to be found in the statute law, for the only two Acts which dealt with the matter (1540, c. 117, 1681, c. 5) contained no such provision. Conveyancing authorities went no further than the recommendation that it was inexpedient that anyone having an interest in a deed should act as an instrumentary witness to it—Duff's Feudal Conveyancing, 15; Bell on the Testing of Deeds, 99. Nor was the doctrine to be found in any institutional writer, but the reverse—Ross' Lect. i. 148; M'Laren on Trusts, i. 96; Dickson on Evidence, secs. 690 and 1782. But assuming the second parties to make out that such a disqualification formerly existed, it was now removed by the Evidence Act (15 and 16 Vict. c. 27), for though this Act was directed mainly to evidence in judicio, it was applicable also to instrumentary witnesses—Dickson, secs. 1 and 5—and in either view it had swept away the reason for the former disqualification—viz., personal interest—from the most important sphere of evidence, and it could not be construed as leaving it standing in the narrower one of instrumentary attestation. The English law was entirely statutory. By the Statute of Frauds (29 Car. II. c. 3) a legacy of £10 to a witness voided the whole will. This was relaxed by 25 Geo. II. c. 6, and now by 1 Vict. c. 26, the will is good, except as regards the witness's own legacy. By the earlier Roman law (Gaius, ii. 108) neither the heir nor a legatee, or any other beneficiary, could be a witness, but in Justinian's time the disqualification was limited to the heir only—Just. ii. 10, 10; Dig. xxxiv. 5, De rebus dubies. The tendency of every law, and particularly the law of Scotland, had been to the removal of the disabilities of witnesses; to decide in favour of the contention of the other side now would be retrogression. This deed was therefore entitled to be admitted to probation (supplied here by agreement of parties) in order to obtain the privileges of section 39 of the Conveyancing Act of 1874.

Replied for the parties of the second and third parts—The cases of Graham and Ingram did not settle the rule conclusively. In the former the interest was too trifling to ground a rule upon, and the latter was special. A large interest like that here brought the case under the principle of Robertson. It was noteworthy that Erskine (iv. 2, 27) refers to it and ignores Graham, and quotes Lord Innerleith. These two cannot stand in principle with Graham, and approval of them involves rejection of it. The true reading is that the rule is the ether way, and Graham and Ingram are exceptions. Neither does Bell, who deals separately with written evidence, notice GrahaM. That case and the case of Ingram had never been regarded as conclusive authorities; the dicta of Lord Pitmilly in Earl Fife v. Earl Fife's Trustees, 1817, 1 Mur. 128, were positive against them. Apart from Ingram alone there is a consensus of opinion that, though a trifling legacy will not disqualify, a considerable interest will do so, and void the deed—Mont. Bell's Lect. pp. 51–2; Ross, supra. English law was still in the second parties' favour to the extent of forfeiting the witness' own provision. Assuming

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them right as to the invalidating effect of the witness’ interest prior to the Evidence Act, was it altered by it? The Act expressly referred only to parole evidence. A ‘witness’ signature to a deed is evidence of an entirely different character from evidence in judicio—Bell's Prin. 229; Titles to Land Act 1868, sec. 139.

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