Scottish Court of Session Decisions

Sir William Stirling Maxwell, Bart., of Keir and Pollok, died in 1878. By his will (which was holograph), dated in 1875, he left and bequeathed his whole property and estate, real and personal, to his two sons, subject to the payment of certain legacies. He appointed certain persons as executors of his will. After some legacies to various relatives there occurred the following—“I also bequeath to Alexander Young, my factor, four thousand pounds, in testimony of my regard and of my sense of his long and faithful service and friendship.

“To Thomas Saddler, my butler, three hundred pounds.

To George Crowson, my butler at 10 Upper Grosvenor Street, five hundred pounds.

To Thomas Mott, my coachman, five hundred pounds.

To Mrs Cairns, my housekeeper, three hundred pounds.

To each of my other servants who shall be in my service at the time of my death, and who shall have been with me for four years, one year's wages.”

On the margin, opposite each of these specific legacies, there was marked in pencil the amount of each legacy in figures and opposite the final bequest above quoted—“To each of my other servants,” &c., there was written, also in pencil, the words “say £1000.”

Sir William left at his death large property, both heritable and movable. The executors proceeded to pay the legacies bequeathed by the testator, and in pursuance of that last above quoted, of a year's wages “to each of my other servants,” &c., they paid away sums amounting in all to £936. The persons to whom these payments to the amount of a year's wages each were made included certain domestic servants, and also two gardeners, three game—keepers, a carpenter (whose yearly wage, the highest on the list, amounted to £100), a forester, a farm grieve, and three land overseers.

The present action was raised by Thomas Brown against the executors for payment of £59, 16s. He averred (which was not disputed by the defenders) that at the time of Sir William's death he was and had been for more than four years previously in his service as a blacksmith at a weekly wage of £1, 3s., payable and paid on the first day of each month. He claimed to fall within the description in the above-quoted provision “to all my other servants.” The executors maintained that the pursuer was not in the category of servants thereby provided for, and refused to recognise his claim for a year's wages. They founded on the pencil markings above referred to as indicating approximately the limits of the bequests, explaining that the yearly wages payable on Keir were £2961, 12s., and on Pollok £1397, 4s., making together £4338, 16s., or more than four times the amount of the legacy as estimated by the testator.

The pursuer pleaded—“(2) On a sound construction of the said holograph will and codicil, the pursuer is entitled, as one of the servants, or at all events as one of the yearly servants, of the late Sir William Stirling Maxwell, to the legacy provided under the said deed, being equivalent to one year's wages. (2) The alleged pencillings on the will cannot competently be considered, and all the defences being irrelevant and in all material respects unfounded, the pursuer is entitled to decree.”

The defenders pleaded—“(6) On a sound construction of the said will of the late Sir William Stirling Maxwell, the pursuer does not come within the category of ‘servants’ for whom provision is thereby made.”

The Lord Ordinary, after a proof of the averment that the pencil writing on the margin was in the handwriting of Sir William, pronounced this interlocutor:—“Finds that the now deceased Sir William Stirling Maxwell, by his last will and testament, bequeathed legacies to Alexander Young, his factor: Thomas Saddler, his butler; to George Crowson, his butler; to Thomas Mott, his coachman; to Mrs Cairns, his housekeeper, and ‘to each of my other servants who shall be in my employment at the time of my death, and who shall have been with me for four years, one year's wages:’ Finds that the pursuer of this action was in the service of Sir William Stirling Maxwell as a blacksmith, on a yearly hiring, and had been so for four years prior to Sir William Stirling Maxwell's death: Finds that his wages were paid on the 1st of every month, at the rate of 23s. weekly: Finds that he is not a servant within the meaning of the bequest to servants to whom a year's wages was bequeathed: Therefore assoilzies the defenders, the executors of Sir William Stirling Maxwell, from the conclusions of the summons, &c.

“ Opinion.—There can be no question that the pursuer was a servant of Sir William Stirling Maxwell at the time of the latter's death; but it does not follow that he comes within the class to whom the legacy is bequeathed. It appears to the Lord Ordinary that the testator used the word ‘servants’ in the social rather than the

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legal meaning of the term. No doubt the pursuer fulfils in one important particular the description of a servant in a bequest to that class. There was a contract between the testator and him, which entitled the former to the service of the pursuer during every part of the yearly term for which he contracted to serve, which distinguishes this case from certain English cases, where the claimant for the legacy was in the employ of the testator merely in consequence of an agreement between the testator and another person, and the servant was not only in the employ of the testator, but in that of the person contracted with. This was the case of a coachman who was provided for the testator by a jobmaster, together with a carriage and horses, in the usual course of business. It was held that he was not a servant within the intent and meaning of the will ( Chilcot v. Bromley, 12 Ves. 114). Nor is the legacy in the present case controlled by a distinguishing adjective, confining the generality of the word ‘servants’ to a particular class, such as occurred in Ogle v. Morgan ( 1 De (Gex, M. and G. 359), where Lord Truro held that a head gardener who lived in one of the testator's cottages, and was not dieted by him, was not entitled, under a bequest of a year's wages ‘to each person as a servant in my domestic establishment at the time of my decease.’ The same qualifying word ‘domestic’ servant occurred in the will of a person who ( M'Intyre v. Fairru's Trustees, 12th November 1863, 2 Macph. 94) had bequeathed to ‘each of my domestic servants, male and female, in my service at the time of my death, £25.’ It was held that ‘a woman who took charge of the place of business of a firm, of which the testator was a leading partner, served him daily with his luncheon there, and occasionally went to his residence to assist when there was company, was a domestic servant of the testator within the meaning of the bequest.’

Sir William Stirling Maxwell did not use the word ‘domestic,’ but the Lord Ordinary thinks that he meant it; and that the legacy must be confined to that class of servants. The main ground upon which this conclusion is reached, is the fact that Sir William after writing his will in ink, proceeded to make a calculation on the margin, in pencil, as to the amount of the legacies he had bequeathed. Opposite each bequest he puts the figure on the margin, and adds up the total. It is of. no moment that the figures on the margin are in pencil and not in ink, it being now settled that a will written in pencil is valid ( Muir, 8 Macph. 53; Simsons v. Simsons, 10 R. 1247), and if so, any declaration of intention, though in pencil, cannot be rejected. Nor is it of any moment that the marginal figures are not signed. They are proved to be holograph. Now, opposite to the bequest of a year's wages to the ‘other servants’ besides those named, he uses these words, ‘say £1000.’ It is proved that if, besides domestic servants, there were included all out-door labourers and mechanics in his employment, the executors would require to disburse not merely £1000, but £4338, 16s. It is quite true that the executors, in construing the bequest, seem to have gone upon no fixed principle, for while they refuse to pay to the pursuer, a blacksmith, the legacy, they have paid it to David Bayne, a carpenter, who stands in precisely the same position as the pursuer. In like manner they have recognised the claim of a forester and of a farm grieve.

No explanation was given to the Lord Ordinary of the grounds on which the defenders paid the legacy to the forester and the farm grieve; but as to the carpenter, the Lord Ordinary was told that he was a favoured servant of Sir William, that his advice was very often asked, and that he was frequently in the company of his master; and the executors, in consequence, held that Sir William could not intend to pass over a servant so privileged and respected. Holding all this to be the fact, just look to what a conclusion it leads. Sir William, instead of distinguishing this favoured servant by leaving to him specially a legacy of a sum of money, brought him in simply as one of the class of servants; and if he did so with regard to him, he did so with regard to every other person, such as the pursuer, who stands in the same position as the carpenter. The Court is not bound by the construction put upon the will by the executors; but unquestionably if the judgment of the Lord Ordinary in this case be right, the payment of a legacy of £100 to that carpenter was wrong. It is possible enough that the testator did contemplate leaving such persons as the carpenter a legacy of a year's wages, and that he miscalculated the amount that would be necessary to meet his bequests,—not remembering at the time the number of persons in his employment. The very words that he uses—‘say £1000,’—show that he was guessing. But the great discrepancy between that sum and the £4338 necessary to pay legacies to all the servants in his employment,—using the word ‘servants’ in its juridical sense,—shows that he only had in view the domestic servants, like the butlers and housekeepers, to whom he bequeathed specific sums of money, and who appear in the will immediately before the bequest ‘to my other servants,’ i.e. servants of the same domestic character.

That the Court can look at the figures on the margin in order to ascertain intention, is a doctrine of which the Lord Ordinary has no doubt. If Sir William Stirling Maxwell had written on the margin an explanation of the language employed in the will, that explanation could be looked to as interpreting the language he used in the will; and if the figures that he has put on the margin in any way contribute to the interpretation of his intentions, they can be read and given effect to; and by the judgment which the Lord Ordinary has now pronounced he has given effect to them in such a way that if it had not been for these figures he would have sustained the claim of the pursuer.

The Lord Ordinary has not found the defenders entitled to expenses, because he was informed that the present was a test case, and that it was desirable to have a judgment of the Court for the guidance of the executors.”

The pursuer reclaimed and argued—The Lord Ordinary in proceeding on the pencilled notes on the margin was wrong—(1) because it being unsigned, it was not competent to look at them to control the text ( Caledonian Railway Company v. Fraser, ante, vol. xi. 345), and (2) because no conclusion as to the class of servants whom the testator meant to include could be drawn from them, for they were as far above the amount required to satisfy legacies to domestic

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servants as they were below that which would be needed if all servants who had been four years in his service when he died were included. Pursuer was not under an obligation to say how far it should be extended, but only to show that it included himself. It was not disputed that he was a servant of the testator paid by regular wages. The real test, then, was the limit of time in the service which the pursuer stipulated. In none of the cases quoted by defenders or the Lord Ordinary did an example of any such limit occur — Thrupp v. Collett, 26 Beavan 147; M'Intyre v. Fairrie's Trs., cited by the Lord Ordinary.

The defenders replied—In all the authorities, chiefly in England, on questions relating to such legacies, they had always been held limited to servants in the family hired by the year— Booth v. Dean, 1 Myl. and Keen, 560; Blackwell v. Pennant, 9 Hare's Chan. Rep. 551; Breslin v. Waldron, 14 Ir. Chan. Rep. 333. The Lord Ordinary was right in limiting it to domestic servants, and in looking to the marginal note. It was true that £1000 was in excess of that required to satisfy all strictly domestic servants, but it was just as much short of the alternative estimate. The executors were not entitled to read the bequest so as to require the larger sum, and were within their rights in reading it to mean the smaller one. In putting that sum the testator was only making a rough guess, and meant to have a wide margin so as to cover easily all legacies to the class to which he must have meant to limit his bounty, viz., family servants, under which category the pursuer did not come.

At advising—