Scottish Court of Session Decisions

This petition was presented to the First Division of the Court of Session by William Brown, accountant, Edinburgh, sole executor under the said last will and settlement, under section 39 of the Conveyancing (Scotland) Act 1874, to have it declared that the codicil was subscribed by “the said Ann M'Intosh as maker thereof, and by the said James Mowat and John Clark as witnesses attesting the subscription of the said Ann M'Intosh.”

Section 39 provides—“No deed, instrument, or writing subscribed by the granter 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 granter 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 that 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 granter or maker and witnesses.”

The petition set forth that the will and codicil were prepared by the petitioner on the instructions of the deceased, and that the will was signed and tested in proper form. “The codicil, after being read over and explained to the deceased by

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the petitioner, was signed by her on the last page, and her signature was properly attested, the two subscribing witnesses being James Mowat, superintendent, and John Clark, attendant, District Asylum, Haddington, near which the deceased happened to be residing when the said codicil was executed. But owing to an oversight the first of the two pages on which the codicil was written was omitted to be signed by the testatrix. The codicil is contained in two pages, which are on separate sheets. The will occupies three pages and part of a fourth of a sheet of paper, and is signed by the testatrix on each of the said four pages. The codicil begins on the said fourth page of the sheet on which the will is written, immediately below the deceased's signature of the will, and ends on the first page of a separate sheet. The page of the codicil omitted to be signed is the first of the two pages on which it is written, and is thus the fourth page of the sheet on which the will is written.”

A proof was led before Lord Mure, from which it appeared that the facts were as above narrated, and it also was proved that when the will was signed it was backed “Last Will and Testament of Miss Ann M'Intosh,” and that no change was made on the backing when the codicil was added.

Argued for the petitioner—The case was ruled by M'Laren v. Menzies, July 20, 1876, 3 R. 1151.

At advising—