Scottish Court of Session Decisions

The late William Stuart Stirling Crawfurd, Esq. of Milton, Lanarkshire, died at Cannes, France, on the 24th of February 1883. He left no issue, but was survived by his widow Caroline Agnes, Duchess-Dowager of Montrose. His nearest collateral relatives were the pursuer of this action, James Stirling Stirling Stuart of Castle-milk, his brother consanguinean and heir-at-law, and Mrs Helen Maitland Stirling or Everard, wife of Henry Everard, Esq. of Newbold Lawn, Leamington, his sister consanguinean. The deceased, who was the elder brother, succeeded many years before the date of this action, on the death of his father Captain Stirling of Milton, to the entailed estate of Milton, a property of great value in Lanarkshire, while the pursuer succeeded to the other family estate of Castle-milk, in the same county, which was also entailed. Under the entail of Milton the pursuer, failing issue of Mr Stirling Crawfurd, was the heir entitled to succeed to him in that estate, but in 1853 Mr Stirling Crawfurd, who was then unmarried, disentailed that estate with consent of the pursuer and Mrs Everard and her son. The pursuer alleged in this action, however, that he then got an undertaking from his brother that the order of succession to Milton would not be changed.

Mr Stirling Crawfurd on 21st October 1853 executed a trust-disposition and settlement by which he conveyed his whole estate mortis causa to Henry Everard, his brother-in-law, William Stirling of Keir, his cousin, and John Dundas, Clerk to the Signet, as trustees for the various purposes therein set forth. These were, inter alia, failing heirs of the testator's body, to convey the estate of Milton to the pursuer and the heirs of his body, to be held under the fetters of a strict entail, and to make over the residue of his estate to the person who should succeed to Milton.

Mr Stirling Crawfurd married the Duchess-Dowager of Montrose in 1876. Prior to this event an antenuptial contract was entered into between the parties, whereby various provisions were secured to her Grace in the event of her being the survivor. On the day on which his marriage took place Mr Crawfurd executed various codicils confirming his trust-disposition, and making additional bequests to his wife, as well as giving numerous legacies to parties named therein.

Upon the 11th and 22d of February 1881 respectively Mr Stirling Crawfurd executed at Cannes, where he had a residence, the two codicils brought under reduction in this action. The codicil of the 11th narrated the settlement and codicils, and bequeathed to the Duchess, in addition to her jointure and the testamentary provisions in her favour, the sum of £120,000 sterling, which sum he directed his trustees to raise out of his estates of Milton and others in the county of Lanark, paying the same to her, if she survived, for her absolute use and behoof. The other codicil, that of 22d February, was simply a duplicate of that of the 14th. The following passage from the note of the Lord Ordinary explains how the codicils came to be executed in duplicate—“Mr Campbell, the London solicitor of the Duchess of Montrose and Mr Stirling Crawfurd, received written instructions from Mr Stirling Crawfurd for the preparation of a codicil which should put the Duchess in the position of receiving an annuity of £5000 a-year from his estate. By a second letter Mr Campbe11 was directed to alter the codicil so as to give the Duchess the absolute control of the money. The instructions were signed by a stamp, which was Mr Stirling Crawfurd's usual mode of signing letters and cheques, a mode which he had been compelled to adopt in consequence of his right hand being affected by a paralytic tremor when he attempted to write. Mr Camp bell, who understood that the bequest was to be of a capital sum which would produce an annual return of £5000, prepared a codicil, bequeathing to the Duchess the sum of £120,000, charged upon the heritable estate of Milton, and sent this codicil by post, addressed to Mr Stirling Crawfurd's residence at Cannes. Mr Stirling Crawfurd signed the codicil on 14th February in presence of two friends, Mr Augustus Savile and Mr Savile's brother, since deceased, who signed the deed as witnesses, but did not fill in the testing-clause. The codicil was sent by post to Mr Campbell, who received it within forty-eight hours after its execution. Mr Campbell in his examination stated that he was under the impression that according to the law of Scotland a testing-clause must be filled in at the time of execution. Under the influence of that impression he had caused a duplicate of the codicil to be prepared and sent to Mr Stirling Crawfurd, with a letter desiring that the codicil should be re-executed, and that the testing—clause should be filled up in the presence of the instrumentary witnesses. He about the same time caused the codicil of 14th February to be endorsed ‘Not used—Incorrectly signed,’ and to be put away in a box containing papers of Mr Stirling Crawfurd. The second codicil was accordingly executed by Mr Stirling Crawfurd on the 22d February in presence of two witnesses, but in executing it the testator impressed his signature with his stamp as I have already stated. The testing-clause was completed under the direction sent by Mr Campbell, and the completed instrument was sent to Mr Campbell by post.”

The pursuer Captain James Stirling Stirling-Stuart of Castlemilk, as heir-at-law and general representative of his brother, brought this action to reduce these codicils, against the testamentary trustees and the Dowager-Duchess of Montrose, the widow and executrix.

His material averments were—At the time of his marriage and during its subsistence Mr Stirling Crawfurd was in feeble health and partially paralysed. The pretended codicil of 14th February 1881 was not duly executed by Mr Stirling Crawfurd. The writing at the foot of each page by way of subscription could not be recognised as his signature. The codicil was not in fact subscribed by the said William Stuart Stirling Crawfurd. If any part of the writing forming his alleged signatures was written by him, the whole was not so written. Further, the subscriptions,

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if and in so far as written by him, were not written by him unaided by any other person, but, on the contrary, his hand was led or guided by some other person or persons. Further, the said codicil was cancelled or superseded, and was not intended by Mr Stirling Crawfurd to be operative as a testamentary writing; it was endorsed in the handwriting of the said John Thomas Campbell, the London solicitor who prepared it, with the words “Not used—incorrectly signed,” and at the time of the testator's death the testing-clause had not been filled up, and the endorsation mentioned stood undeleted, but the testing-clause was afterwards written in, the endorsation deleted, and the deed, along with the subsequent codicil alleged to have been executed on 22d February 1881, recorded in the Books of Council and Session on 19th March 1883. The pretended codicil of 22d February 1881 was prepared because of that bearing to be dated 14th February 1881 having been inept. The one of 22d February contained no reference to that of 14th February, but proceeded precisely as it would have done had the earlier deed never been prepared or been destroyed. As to the second codicil the pursuer averred—The said second codicil was not duly executed by Mr Stirling Crawfurd, the signatures thereto not being wholly the writing of the said Mr Stirling Crawfurd. The said codicil was not in fact subscribed by the said William Stuart Stirling Crawfurd. If any part of the writing forming his alleged signatures was written by him, the whole was not so written. Further, the said subscriptions, if and in so far as written by him, were not written by him unaided by any other person, but, on the contrary, his hand was led or guided by some other person or persons. By the law of France, in which country both codicils were executed, they were invalid. According to said law, a will or codicil to receive effect must either be holograph of the maker or executed before a notary according to form of law. Neither of the said codicils was holograph or was so executed before a notary.

The defenders denied that at the time of his marriage, or during its subsistence, Mr Crawfurd was in feeble health, and they averred that he resided at Cannes in winter as he owned a property there, and that he was in the habit of taking long walks daily, and also riding exercise; that some years before his death he had an affection of the muscles of his right hand which gave his hand a shaky appearance and rendered his signature difficult to read. In consequence of this he had a brass stamp made bearing his signature, which he used for signing cheques, letters, and deeds, but that he occasionally used a pen.

With reference to the codicil of 14th February 1881, the defenders alleged as follows:—“It was duly executed by the deceased, who signed it with a pen, unaided by anyone, in presence of two intimate friends who were paying him a visit at the time and who signed as witnesses. The said codicil was duly and validly executed in accordance with the law of Scotland and also with the law of England. Explained that the codicil had been prepared and engrossed for signature in the office of Mr Campbell, on the instructions of Mr Stirling Crawfurd, but on its return from Cannes duly executed, Mr Campbell, who was under the impression that the testing-clause required to be filled up by one of the witnesses at the time of signing, had the codicil re-engrossed for signature. The marking on the back of the codicil of 14th February was made by Mr Campbell's clerk, in error, and without the authority or knowledge of the testator, and it was deleted and the testing-clause duly filled up before the codicil was recorded.

As to the codicil of 22d February, the defenders averred that it was executed by the deceased by adhibiting his signature, by means of his brass stamp (engraved by his orders, and forming a reproduction of his writing before it became affected), in the presence of the subscribing witnesses. They maintained that such a signature was effectual and valid according to the law both of England and Scotland, in one or other of which countries he was domiciled, and they referred to 24 and 25 Vict. c. 114, sec. 1, whereby it is enacted that the will of a British subject made out of the United Kingdom (whatever be his domicile at the time of making it, or of his death) shall as to personal estate be held well executed if made according to … the laws in force at the time of making it in that part of Her Majesty's dominions where he had his domicile of origin. Scotland was the domicile of origin.

The pursuers pleaded, inter alia—“(2) The said pretended codicil of 14th February 1881 not having been signed by the said William Stuart Stirling Crawfurd, it should be reduced or declared inoperative. (4) The pretended subscription to the said last-mentioned codicil not being wholly in the handwriting of the said William Stuart Stirling Crawfurd, or he having been assisted by another person in making the said pretended subscription, the said deed ought to be reduced or declared inoperative. (6) The said pretended codicil of 22d February 1881 not having been signed by the said William Stuart Stirling Crawfurd, the same ought to be reduced.”

The defenders pleaded, inter alia—“(3) The codicils libelled having been duly executed by the testator, decree of absolvitor should be pronounced. (4) The said codicils should receive effect, seeing that they remained unrevoked, and are subsisting testamentary writings of the deceased.”

The Lord Ordinary allowed a proof. The material facts proved are fully detailed in his Lordship's opinion.

On 4th April 1884 he pronounced this interlocutor—“Finds (1) that the codicil of 22d February 1881 is not well executed according to the law of Scotland, but that the pursuer has no interest to reduce that instrument; (2) that the codicil of 14th February 1881 is well executed, according to the law of Scotland, being the law of the testator's domicile of origin; and that the codicil of 14th February 1881 was not revoked or cancelled by the granter, and that the same is a valid and effectual testamentary writ of the deceased Mr Stirling Crawfurd: Therefore assoilzies the defenders from the conclusions of the action, and decerns, &c.

Note.— In this action Mr Stirling-Stuart, brother consanguinean and representative of the deceased Mr Stirling Crawfurd, sues for reduction of two codicils executed by that gentleman, which are dated respectively 14th and 22d February 1881. The two codicils are expressed in identical terms, being copies of the same draft, and they

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are brought under reduction on the same technical ground, namely, that the signatures adhibited to these instruments are not the genuine subscription of Mr Stirling Crawfurd. The objection to the codicil of 14th February is, that the original signature of Mr Stirling Crawfurd being illegible, had been written over by some person unknown to make it legible. It is further contended that this codicil, if it is the testator's writ, has been revoked, cancelled, or otherwise rendered ineffectual by the execution of the codicil of 22d February. The objection to the codicil of 22d February is, that the signature to it is an impression from a stamp which Mr Stirling Crawfurd was in the habit of using, and is therefore not a subscription such as is required by law.

An objection was also stated to the codicil of 14th February, on the ground that the testing clause was filled up after the testator's death, under circumstances in which his authority for doing so ought not to be presumed. But it is unnecessary that I should consider this point, because the codicil bears the designations of the instrumentary witnesses appended to their signatures by themselves, and the codicil is therefore well executed under the recent statute if it is not open to objection on extrinsic grounds.

(1) I shall consider first the objection to the codicil of 22d February, because it is only in the case of that instrument being displaced that it becomes necessary to consider the objections which have been stated to the codicil of 14th February.

On this subject I may say at once that I do not consider it to be attended with difficulty. It is a question of Scotch statutory law, and the requirement of the statute is clear. The Statute 1540, c. 117, requires that every deed shall be authenticated by the granter's subscription. The meaning of this enactment is, as I read it, that the granter shall adhibit his subscription in manuscript, that is, he shall form the letters constituting his subscription by a continuous act of writing; and while it may not be essential that this shall be done with a pen, I think it is essential that the letters should be formed by the hand and not by way of impression from an engraved stamp or die. An impressed signature, in our law, is no better than an engraved or printed signature. I know that the law of England permits the execution of deeds by stamping in the presence of witnesses, but that law differs from ours in allowing execution or subscription by a mark. A stamped subscription may be good as a mark, or perhaps as a seal, but neither of these modes of execution is valid by our law; and I am clearly of opinion that an impressed copy of the granter's signature is not subscription in the sense of the Scottish statute. In the present case it is proved by the evidence of one of the instrumentary witnesses that Mr Stirling Crawfurd's signature to the codicil of 22d February was impressed by a stamp. The surname Stirling Crawfurd is evidently a copy from the same stamp which is affixed to the bundle of cheques which were given in for comparison. The letters “W. S.,” the initials of his Christian name, are in manuscript, but it is not proved that they were written in presence of the instrumentary witnesses, and it is therefore not necessary to consider whether a subscription begun in writing and completed by a stamp would constitute a legal subscription. In the result, I find that the codicil of 22d February does not form part of the will of Mr Stirling Crawfurd.

(2) I shall now consider whether the codicil of 22d February while ineffectual as a will is equivalent to a revocation of the codicil of 14th February, assuming that the codicil of 14th February is not open to objection on the grounds of defective execution. The question arises in this way—[ His Lordship here explained how the codicils came to be executed in duplicate, as already quoted].

On the question of implied revocation, I heard a very able argument, to which I have been anxious to give the most careful consideration. It was contended by the Solicitor-General for the pursuer that the first codicil (that of 14th February) never was at any time the will of Mr Stirling Crawfurd; that it was sent to Mr Campbell incomplete, for the purpose of being completed; and that on receiving the opinion of Mr Campbell that the codicil was incorrectly executed, Mr Stirling Crawfurd abandoned the intention of completing it, as is shown by the fact of his having executed the second copy in the way which he thought sufficient. Thus, according to the pursuer's argument, the original transcript of the codicil was discredited, and ceased to possess, if it ever possessed even provisionally, the attributes of a document expressive of the testator's will. Now, I am not prepared to say that this argument is logically unsound, but I think it is unsound as applied to the facts of the case. I can conceive of such a case as a testator writing out a will before he had finally made up his mind to execute it, and putting his name to the paper, not for the purpose of execution, but merely to indicate that this was a draft in his handwriting, or for some purpose not intelligible to persons of ordinary business habits. If it could be proved (though I do not quite see how this could be proved) that in such a case the writing was not intended to be a testamentary writing, a court of equity would probably be well founded in refusing to recognise it as such. But in the present case there cannot be the smallest doubt that when Mr Stirling Crawfurd signed the codicil of 14th February he intended it to have a testamentary operation. I asked Mr Savile the question, and he answered that Mr Stirling Crawfurd executed the codicil as his testament. It was not in the least necessary that the codicil should be delivered to anyone in order that it should have a testamentary operation. Nevertheless, the fact that the testator immediately sent it to his solicitor, coupled with this statement of the instrumentary witness, is evidence—and to my mind conclusive evidence —that he meant it to have a testamentary operation. The codicil being executed with the intention that it should take effect as such would from the moment of execution become an effective testamentary instrument, and would continue to have such effect until it was taken out of the way by the act of the testator—that is, by cancellation, or by the effect of a subsequent revoking instrument. Its effect could not, according to all the authorities, be taken away by a mere intention in the mind of the testator that the codicil should not subsist, and still less by his belief (subsequently induced) that the codicil was affected by some legal flaw rendering it ineffective. I am therefore unable to accept either of the suggestions

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that the codicil was never effective in the testator's intention, or that, if effective, it lost its effect by reason of the testator's belief or intention that it should no longer subsist. The question remains whether the codicil was revoked by the execution of a subsequent codicil (that of 22d February) expressed in identical terms. I am not sure whether the affirmative of this proposition was maintained. To me it appears untenable, for, in the first place, the codicil of 22d February contains no clause of revocation, and there is no inconsistency in the two instruments from which a case of implied revocation could be reared up. The suggestion of inconsistency as applied to the case of duplicate instruments is something like a contradiction in terms, and in' the absence of any express clause of revocation I can only regard the second duplicate as confirmatory of the first in case the first should from any cause be insufficient to pass the property.

But further, the second codicil cannot be a revocation of the first, because the pursuer has successfully maintained that the second codicil is not the act of the testator. I am aware that questions somewhat resembling this have been raised in other cases, and so, for example, where a deed contains an effectual revoking clause, but is not effectual as a deed of conveyance, it is perfectly intelligible that the effect of such an instrument may be intestacy. But in the present case I am reducing the codicil of 22d February in integrum as not being the deed of Mr Stirling Crawfurd, and whether this decree be well or ill-founded I could not, without manifest inconsistency, hold that the codicil of 22d February, which in my view has no legal existence, is effectual for any purpose whatsoever. If, however, the codicil of 22d February shall eventually be held to be well executed, the pursuer's case will in no way be improved, because that codicil, if set up, would carry the property in dispute away from the pursuer.

(3) In the preceding part of my opinion I have assumed that the codicil of 14th February is well executed, but as indicated in the outset the genuineness of the subscription adhibited to that codicil is disputed, and I must now consider the objections which have been stated to it. These are, stated shortly—(1) That the subscription at the end of the deed is illegible; (2) that the initial letters ‘W. S.’ have been prefixed in a different hand, and outwith the presence of the instrumentary witnesses; and (3) that the remainder of the signature has been written over in a different hand, so that the original subscription can no longer be read. It is also made a point that the signatures on the first and second pages of the deed are illegible, though they are not said to be written over. But as the codicil is all contained in one sheet of paper, it appeared to me that, provided the subscription to the last page were held to be well executed, the objection stated to the legibility of the previous signatures was of no consequence.

The evidence on this subject admits of being very shortly stated. Mr Augustus Savile, the surviving instrumentary witness, states in effect that the codicil was subscribed by the testator in his presence, and in the presence of his brother, in the ordinary way, and that it was then attested by the witnesses in conformity with the requirements of the laws of England and Scotland. At the beginning of his cross-examination Mr Savile stated that the testator did not take a very long time to subscribe his name—not longer than might be expected of a man with a trembling hand. His belief was that the subscriptions were written continuously, and were not touched up by the testator in the presence of the witnesses. It appeared to me, however, as the result of the cross-examination, that Mr Savile had no very distinct recollection as to Mr Stirling Crawfurd's manner of writing, though he perfectly recollected having seen him sign the codicil in his library on the 14th of February, and recognised the subscription as being in the handwriting of Mr Stirling Crawfurd. It was explained by another witness, Mr Campbell, that Mr Stirling Crawfurd's hand, which was sufficiently steady for other uses, became very shaky whenever he attempted to write, and that the agitation of his hand was increased by the consciousness that anyone was looking at him. Such being the case, I can well believe that Mr Savile, while a witness to the general fact of his subscription, would abstain from watching the action of the testator's hand in a way that would be embarrassing or that would increase the difficulty under which the testator laboured in forming his signature. It is therefore quite possible that Mr Stirling Crawfurd may have touched up his signature here and there, and may even have added the initial letters that we find there after he had written the body of his signature, and yet that Mr Savile may not have observed that this was being done. Mr Campbell states that it was Mr Stirling Crawfurd's habit to touch up his signature, and it is possible that Mr Savile may have observed the touching up at the time it was done, but without attaching any importance to it, in which case it is the most unlikely thing in the world that he should remember the circumstance when examined about it three years after the event. The material point in Mr Savile's testimony is, that he recognises the signature which he sees as being the same which he at tested when he put his name to the codicil in February 1881.

On the other side the case rests mainly on the evidence of two experts, who say, as the result of careful examination, that the signature has been re-written, and in their opinion by a different hand. I have also been furnished with a large number of signatures of Mr Stirling Crawfurd, executed at different times, while his hand was affected by paralysis, for the purposes of comparison. No, medical evidence was adduced on either side as to the effect of this particular form of paralysis (described as scrivener's palsy), but some indications as to its effect are given by the other signatures of Mr Stirling Crawfurd which I have examined, and to which I shall immediately refer.

I have felt this part of the case to be a subject of great difficulty, but its consideration has been simplified by the conclusion to which I have come. With respect to the objection of illegibility, I think that this objection must be absolutely rejected. Our law does not recognise subscripton by mark, and it follows that everything put upon a deed by a person who has not learned to write, and who for that reason cannot form the letters of his signature, is a bad subscription. I should further be prepared to hold that something put upon a deed by a person who is able to write,

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but which he has not tried to form into a signature and which is not recognisable as a signature, is bad. But if the granter of a deed has acquired the art of writing, and if he writes down what he means to be his signature, honestly endeavouring to write his name according to his ability, this, I think, is to be accepted as a subscription, even although it should be illegible. Undecipherable signatures are by no means unfrequent, and the signatures of illiterate persons are often more easily read than those of persons largely engaged in correspondence. Can it then be maintained that there is one kind of illegibility which does not vitiate a subscription, and another kind which will have that effect? If this be so, there must be some criterion for distinguishing between the two kinds of illegibility, but I know of none, and no satisfactory distinction was suggested in argument. The only test that I know is, that the subscriber must have the capacity to write his name, and that the characters which he puts upon the paper must be placed there with the intention of constituting his subscription. If this be the proper test then, the objection to the legibility of Mr Stirling Crawfurd's signature disappears.

The matter of the illegibility of the subscription is, however, important to the pursuer's case in another view; because it is necessary to assume that the signature as at first written, was illegible in order to account for it being rewritten, as the pursuer thinks it was. Now, on the question of fact, whether the signature at the end of the codicil has been re-written, the recollection of Mr Savile, the instrumentary witness, is in direct opposition to the evidence of the experts. In this conflict of opinion I am inclined to place considerable reliance on the evidence of my own eyes, which I conceive to be not only competent but trustworthy evidence in a question of this kind. I examined the original signatures to the codicil with great care when they were exhibited in Court, and compared them with the photographic copies which were put in for reference. Since the proof was taken I have looked at every signature of Mr Stirling Crawfurd contained in the bundle of deeds and cheques (I except, of course, the stamped signatures) which were put in for reference. I formed the opinion, from inspection of the codicil in Court, that certain parts of the signature had been re-written, and the impression remains unaltered after subsequent and careful examination of the photographic copies. The question is, how and when were these alterations made? The pursuer's case is, that the alterations were not made by Mr Stirling Crawfurd in presence of the instrumentary witnesses, because it is materially impossible that the initial letters ‘W. S.,’ which are clear and firm, and possessed of a certain character, can have been designed by the hand which formed the original signature. I should be unwilling to accept this conclusion, because it seems to imply that within the few hours during which the codicil remained in Mr Stirling Crawfurd's custody someone with his consent had altered his signature. Of course, if the alterations were made without the testator's consent they would not invalidate his signature. Certainly a will is not to be set aside because someone unknown to the maker chooses to tamper with his signature. But the suggestion is, that this was done with Mr Stirling Crawfurd's consent, and therefore that the will was not subscribed in terms of the statute. Now, if I had been obliged to form an opinion after my inspection of the signatures to the codicil, and one or two other signatures which were shewn to me in Court, I should have had very great difficulty in holding that the initial letters ‘W. S.’ were Mr Stirling Crawfurd's handwriting. But after examining the other signatures which were put in evidence, that difficulty had in a great measure disappeared, and I am now of opinion that it is possible, and even probable, that these letters, as well as the other alterations appearing on the signature, were made by the hand of the testator. It is enough, in my view, that they may possibly have been formed by his hand, because the presumption of law is in favour of authenticity, and there is no evidence to the contrary. The initial letters have the character of Mr Stirling Crawfurd's handwriting, especially the letter ‘W.’ Even Mr Blackley, Mr Stirling Crawfurd's factor, who disbelieves in the authenticity of the signature as it stands, admits that the ‘W’ may have been written by Mr Stirling Crawfurd; and while he demurs to the ‘s’ as being unlike the testator's signature, it appears from the evidence of Mr Campbell that the testator had no uniform mode of forming the initial ‘s’ of his signature, and it is evident to the eye that the ‘W’ and ‘s’ were formed at the same time and by the same hand. As regards the initial ‘S,’ I find on my examination of the signatures in process that the testator varied very much in his mode of writing that letter, sometimes using the form of a small manuscript ‘S,’ and sometimes, as in his codicil, using a form approximating to a printed ‘S.’ In the signature under consideration this letter ‘s’ has undoubtedly been written over part of the original ‘W,’ and I think by an upward stroke of the pen. A letter written under such conditions, and with the intention of obliterating another letter, would not necessarily be the same as the writer's ordinary signature. Yet the ‘s’ in question is not very dissimilar from the one in the engraved stamp, which I must assume to be a characteristic signature. As to the other touches, the T in Stirling and the ‘C’ and ‘f’ in Crawfurd, there is really nothing characteristic about them. They might have been made by the testator as well as by any other person. But the grand objection to these letters, according to the pursuer's argument, is their steadiness in comparison with the rest of the signature. Now, it is on this point that I have derived aid from the deeds produced for comparison. I find that in several instances where the signatures bear marks of extreme unsteadiness of hand, and are indeed almost undecipherable, particular letters, and especially the initial letters, are regularly formed, and are unaffected by tremor. I refer to the following amongst others—Feu-contract dated 25th October 1881, signature to page 1; feu-contract dated 31st July 1880; feu-disposition dated 28th November 1881, signature to page 2. This is a very remarkable instance. Not only is the signature generally illegible, but it is a sort of triple signature, being written in three lines, one under the other, representing three ineffectual attempts to form the letters of the surname. Yet the initial ‘W,’ which bears a striking resemblance to that of the signature under reduction, might have been made in

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perfect health, the strokes being rounded and clearly cut, and the letter completely formed. This letter, in my opinion, was written after the rest of the signature, and in substitution for the imperfect ‘W’ to the right, which is struck out. Among the cheques which are signed in manuscript I may refer to the fifth in the order in the packet, which is dated February 4, 1880, and is in favour of Mr H. R. Sherborne. Here the ‘W,’ although not so well formed as the one last referred to, is formed in straight and perfectly steady strokes. The ‘W’ of the second signature of the codicil in question is like it, though not so well formed. In the opinion of the expert witnesses the wavy line running through the word ‘Crawfurd’ in the signature to the codicil was written by another hand after the completion of the signature. I think, on the contrary, that this wavy or indeterminate line was the original signature, and that the dashes across the two names indicating the principal letters were put in afterwards. Such are the ‘l’ in Stirling, the ‘f’ in Crawfurd, and the two dashes after the ‘f’ which indicate the letter ‘u.’ It is not impossible that these were put in by the testator, and if they were put in at the same time they constitute an integral part of his signature. Although there is no medical evidence, it is in evidence that Mr Stirling Crawfurd's hand only became unsteady when he attempted to write, and I can well believe, from the character of his other signatures, that this unsteadiness of hand was attended by momentary intermissions in which he was capable of prefixing an initial or dashing in a significant letter into the otherwise confused scrawl which constituted his signature. Of course it is possible that these emendations may have been made by the testator ex intervallo when he was not excited by the presence of witnesses to his infirmity. But it is not necessary that I should give an opinion as to the effect of emendations so made. It may be a question of degree. The stroking of a ‘t’ or the dotting of an ‘i’ after the witnesses had left would hardly be regarded as material alterations on a signature. In the present case there is no evidence whatever of alteration ex intervallo, and as I see from other signatures to probative deeds that the deceased gentleman was capable of forming single letters which bear no marks of weakness, I must assume that in the present case the evidence of the instrumentary witness is correct, and that the signature as we see it was all one act, though not in my opinion one continuous act of subscription.

If, as the pursuer states, he consented to the disentail of the estate of Milton on the assurance that the succession would not be altered to his prejudice, his case is a hard one, but I am not trying any question involving obligation or good faith. In the view I take of the case the material question is, whether the codicil of 14th February 1881 was well executed according to the law of the testator's domicile of origin, which is admitted to be in Scotland, and whether that codicil is a subsisting instrument? As I have found affirmatively on both these points, it follows that the defenders are entitled to absolvitor.”

The pursuer reclaimed, and argued—The codicil of 14th February was bad on three grounds —(1) That that which was appended to it was not a signature in any sense of the word; (2) that the subscription was not a signature by the person alleged to have executed the deed before witnesses as required by the law of Scotland; (3) that, as shown by the fact of a substituted codicil having been made, Mr Stirling Crawfurd had discarded this as one of his testamentary writings. As to what was required in the way of signature, see Bell's Conveyancing, i. 31, and then the case of Wilson, reported in Hume, 912, and Crosby v. Picken, M. 16,814. The signature as it now stood was an unwitnessed signature, because the testator, not satisfied with the sufficiency of his signature as made before witnesses, amended it in private. The evidence of the surviving testamentary witness that no touching up took place was of little avail, and only showed he was mistaken, as the superinduction was distinctly visible, and the signature was thus invalid.—Act 1672, cap. 21; Scott v. Sceales, February 5, 1864, 2 Macph. 613. Could this signature be called one continuous act of penmanship? If not it was bad, as there was no case here of an acknowledgment of a subscription. This could not be called a properly authenticated deed, as the major part of it was superinduced, especially the letters “W” and “S.” The case of Moncrieff, M. 15,936, illustrated the necessity of completing the subscription in full in one handwriting. Under the Act of 1540, cap. 117, sealing was dispensed with as a solemnity, and subscription required instead. Now, could this writing in any way be called a subscription in the sense of the Act of 1540?—See as to this Din v. Gillies, 18th June 1813, reported in note to Weir, 22d June 1813, F.C. The whole writ as it stood on page 3 must be taken as Mr Stirling Crawfurd's signature. To subscribe a deed on only one of its pages would not do— Dempster, M. 16, 947; Nasmyth v. Hare, July 27, 1821, 1 Sh. App. 65; Crosbie v. Wilson, June 2, 1865, 3 Macph. 870. The superinduction was probably by Mr H. Savile, the deceased instrumentary witness, who at the time was signing numerous documents for Mr Crawfurd. On the question of cancellation—Consider of what papers Mr Stirling Crawfurd's will consisted? It did not include the codicil of 14th February, because it was superseded by the codicil of the 22d February. The testator never intended the first codicil to be a part of his testamentary writs.

Argued for defenders—The codicil of 14th February was well executed; it was probative, and the witnesses had been specially called in to witness the signature. The evidence of the experts was of little value, the more so as Mr Stirling Crawfurd's signature varied so much. The final signature was sufficient, as the document was contained on a single sheet of paper, but the whole three might be looked at to show that there were certain characteristics apparent in them all. Mr Crawfurd was in the habit of touching up his signature, and so this was not an ordinary case of superinduction. The various signatures in process showed that the testator's hand had certain marked characteristics; and though a stranger might not be able to read it, those who knew the signature could recognise it. With reference to the alleged “touching up,” much depended on what was done and by whom. There was no evidence that the initials “W. S.” were not all there before the alleged superinduction took place. If the elements of a good signature were there to begin with, it must stand, unless

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the touching up went the length of cancellation. Under the Act 1672, cap. 12, there must be in a valid signature an initial letter of a Christian name. If, then, there was one of Mr Crawfurd's initials of his Christian name legible, that was sufficient to constitute a good subscription. If the writing were intended by the writer to pass as his signature, then the deed would stand.

On the question of whether if this was a signature it was duly witnessed—To undo the effect of the signature the pursuer must get rid of the testing-clause. Prima facie, that clause applied to the writing as it stood, and the alleged superinduction could not diminish its effect. The alleged superinductions were unnecessary, and could not invalidate a previously good signature. There was nothing in the case of the nature of revocation, nor of an intention by the testator to cancel his first codicil— Kirkpatrick, 1 R. (H. of L.) 37; Williams on Executors, i. 1515.

At advising—