Scottish Court of Session Decisions

This was an action of proving the tenor of the general disposition and settlement of Alexander Leckie senior, slater, Bonnyrigg, at the instance of Mary M'Credie or Leckie, relict of the said Alexander Leckie, John Stewart, Alexander Stewart, eldest son and heir-at-law of the deceased Daniel Stewart, and Alexander Leckie, the adopted son of Alexander Leckie senior, against James Leckie and others, the heir-at-law and next-of-kin of Alexander Leckie senior.

Alexander Leckie senior died on the 25th June 1883, and the pursuers averred that he left a general disposition and settlement in the following terms, or in other terms to the like effect:—“I, Alexander Leckie, slater, Bonnyrigg, being resolved to settle my affairs so as to prevent all disputes after my death, do hereby give, grant, assign, and dispone to and in favour of my wife Mary M'Credie or Leckie in liferent, and Daniel Stewart and John Stewart, residing in London, nephews of my said wife, equally, and their respective heirs and assignees whomsover, in fee, heritably and irredeemably, All and Whole my whole heritable estate wheresoever situated, presently belonging to me, or which shall belong to me at the time of my death, with the whole writs, titles, and securities of the same, and my whole right, title, and interest present and future therein, and further, I do hereby give, grant, assign, and dispone to and in favour of the said Mary M'Credie or Leckie, my wife, in liferent, and Alexander Leckie, our adopted son, presently residing in family with us, and his heirs and assignees whomsoever, my whole stock-in—trade, book-debts, household furniture, cash, and, in general my whole moveable estate wheresoever situated, presently addebted and belonging to me, or which shall belong and be addebted to me at the time of my death, with the whole vouchers and instructions thereof, and all that has followed or is competent to follow thereupon: But these presents are granted in favour of the said Alexander Leckie under burden of payment of my debts and funeral expenses in the event of my surviving my said wife, and of the succession to my said moveable estate opening to him at my death, declaring that the said Mary M'Credie or Leckie shall have power, in the event of her being in necessitous circumstances and unable to provide for herself, to sell and dispose of the whole or of such part of my said estate as she may think proper for her maintenance and support: And I hereby nominate and appoint the said Mary M'Credie or Leckie, whom failing the said Alexander Leckie, to be my sole executor; and I reserve power to alter or revoke these presents; and I dispense with the delivery hereof; and I reserve my liferent right; and I consent to registration hereof for preservation. — In witness whereof, I have subscribed these presents,

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written by Peter Forbes, residing at Bonnyrigg, upon the 24th day of October 1874, before these witnesses, the said Peter Forbes and Gavin Dickson, joiner, Bonnyrigg. (Signed) Alexander Leckie. (Signed) Peter Forbes, witness. (Signed) Gavin Dickson, witness,”—or in other terms to the same effect.

The pursuer further averred—“The estate of the testator at the date of his death consisted of heritable subjects valued at £520, and moveable property amounting to £365. (Cond. 2) The said general disposition and settlement was prepared, on the instructions of the said deceased Alexander Leckie senior, by Mr Peter Forbes, collector, Bonnyrigg, and was duly executed by Mr Leckie on or about 24th October 1874 at Bonnyrigg, in presence of the said Peter Forbes and of Gavin Dickson, joiner, Bonnyrigg. A draft of the said disposition and settlement was prepared by the said Peter Forbes, from a copy disposition and settlement in the possession of the late Thomas Steven, Bonnyrigg. The draft of Mr Leckie's disposition and settlement was burned by the said Peter Forbes as a useless paper, along with some other old papers, when he removed to his present dwelling-house in 1882. The said Alexander Leckie a day or two before his death sent for Mr Forbes, and told him he wished to make a small alteration on his settlement, which was then brought to him by Mrs Leckie, but a visitor came in, and the settlement was put away at Mr Leckie's request, and no alteration was made upon it. The proposed alteration was to leave a small bequest to the Free Church in Bonnyrigg, of which Mr Leckie was a member.” The casus, omis—sionis was thus libelled:—“(Cond. 3) The said general disposition and settlement remained in the possession of the said deceased Alexander Leckie till the date of his death, and was seen and read by Mrs Leckie, his wife, by Alexander Leckie jr., his adopted son, by John Stewart, his wife's nephew, and by Mrs Elizabeth Pettie, Bonnyrigg, a neighbour of the testator. (Cond. 4) After the said Alexander Leckie's death, but before the funeral, his wife Mary M'Credie or Leckie took the said general disposition and settlement from a drawer in a chest of drawers in a room of the house where the same was kept, along with the titles of heritable subjects in Bonnyrigg belonging to the said Alexander Leckie, and brought the deed to the kitchen for the purpose of perusing it. Alexander Leckie jr. and Mrs Elizabeth Pettie were in the kitchen at the time. Mrs Leckie on entering the kitchen handed the deed to Alexander Leckie jr., who opened and read it. Mrs Pettie drew his attention to a provision of the will conveying the heritable property in Bonnyrigg to Mrs Leckie's nephews Daniel Stewart and John Stewart, burdened with a liferent in her favour, and remarked that they did'nt require anything, as they had got by far too much already, and that the will ought to be burned. Alexander Leckie thereupon said he would warm his hands over it, and immediately put the settlement in the fire, when it was burned. The present action has therefore been rendered necessary.”

Defences were lodged for the heir-at-law and next-of-kin. The defenders stated that there existed “no testamentary writing or document purporting to be a mortis causa settlement of the late Mr Leckie's affairs,” and explained:—“The defenders understand that about the year 1874 Mr Peter Forbes, collector, Bonnyrigg, prepared a settlement for Mr Leckie; but it is also known that Mr Leckie subsequently contemplated cancelling or altering this settlement, but the defenders are unable to say whether or not he carried this intention into effect. No written adminicles of any kind are produced or founded on by the pursuers for instructing the terms of the pretended general disposition and settlement, and the defenders aver that its terms cannot be established to any extent. The settlement prepared by Mr Forbes was never seen by him after its preparation in 1874, and Gavin Dickson, alleged to have been a witness to the execution thereof, has been dead for many years. Even on the assumption that the deed, of which the casus amissionis is set forth in article 4, was a valid settlement of the deceased, and was the deed prepared by Mr Forbes in 1874, and that the casus amissionis took place as alleged, all of which averments are denied by the defenders,—the pursuers, Mrs Leckie and Alexander Leckie, having voluntarily destroyed said deed, are barred personali exceptione from insisting in this action. The other pursuers would have only a spes successionis to the said Mrs Leckie under the deed set forth on the summons, and have neither title nor interest to insist in this action.”

They pleaded—“(2) The pursuers' averments are irrelevant and insufficient to support the conclusions of the summons. (3) The action is incompetent as laid; or otherwise, no written adminicles being libelled on for proving the tenor of the alleged settlement, the action should be dismissed. (4) The pursuers Mrs Mary M'Gredie or Leckie, and Alexander Leckie, are barred per—sonali exceptione from insisting in the action.”

The Court before answer allowed the pursuers a proof of their averments.

From the proof (which was led before Lord Craighill) it appeared that Mr Forbes, who was inspector of poor of Bonnyrigg, and a friend of Leckie's, and had had experience of legal documents, had prepared his settlement after having had furnished to him by Leckie a note of what he wished its provisions to be. A draft had also been prepared by Forbes and revised by Leckie. The deed was prepared on the model of one of a similar nature to which Forbes had had access, but which was lost at the date of this action, and he also used a form in a “Pocket Lawyer.” Two years before the death of Leckie, Forbes, when destroying waste papers previous to changing his house, burned both Leckie's memorandum, which he had kept within the draft, and the draft itself, as being no longer useful. He saw the settlement in Leckie's house a few days before his death, at which time he contemplated an alteration, which, however, was never made. He (Forbes) did not then look over its contents. When the present question arose, he told the agent in the case the contents of the will, of which he had a clear recollection from memory, and after the agent had written them down he went over them with the assistance of the Pocket Lawyer he had used in drawing the will. In this manner the copy of the deed as libelled in the summons was made up, and it was correct according to his belief, except

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that Daniel and John Stewart, as well as Alexander Leckie jr., were appointed executors by the original deed.

Mrs Forbes, who had compared the draft with the will along with her husband at the time it was executed, remembered generally that its provisions were those contained in the deed libelled, and deponed to the destruction of the memorandum and draft.

Leckie's widow also deponed to the deed libelled being a correct reproduction of the will.

It appeared that before he died Leckie had transferred to his wife's name his money lying in a bank at Bonnyrigg.

The casus amissionis was proved to be that when Leckie's widow, the woman named Pettie mentioned in the condescendence, who was present in the house, and Alexander Leckie jr., were talking about the will between the death and the funeral, and were examining its contents, a remark was made that it was a pity for other people to get the use of the property, since Alexander was the adopted son, whereupon he snatched the will from the hands of Mrs Pettie, who was reading it, and burnt it.

The Court then heard argument as to the import of the proof.

Pursuers' authorities— Lillie v. Lillie, Dec. 4, 1832, 11 S. 160.

Argued for the defenders—The tenor of the will was not proved. Even if it were proved, it was not proved to be the ruling settlement at the testator's death, nor that the document destroyed was the settlement of 1874.

Defenders' authorities— Graham v. Graham, Nov. 12, 1847, 10 D. 45.

At advising—