Scottish Court of Session Decisions

The late John Gunnell, of Glasgow, died on the 15th January 1885. After his death there were found in his repositories (1) a general disposition and settlement by him dated 9th December 1864; (2) a general disposition and settlement dated 10th September 1875; and (3) a general disposition and settlement dated 10th September 1882. The second of these settlements, which were all holograph of the testator, was signed by him before two witnesses, and by it certain persons were named as trustees. The third—the settlement of 1882—bore to be signed by the testator “before these witnesses,” but it did not bear to be signed by any witnesses. A list of persons named as trustees was appended to it, two of whom were the same as named in the deed of 1875, viz., John Jones junior and Gavin Watson. Acting upon counsel's opinion, that the will of 1882 was “inchoate and ineffectual and of no effect,” and that the will of 1875 regulated the succession, three of the trustees in the deed of 1875, Thomas Jones junior, John Davidson, and Gavin Watson, as surviving and accepting executors named in that will, presented a petition to the Sheriff of Lanarkshire as Commissary for warrant to the Commissary-Clerk to issue confirmation in their favour as executors-nominate of Gunnell.

Intimation of the application was made to the beneficiaries under the settlement of 1882. Mrs Pursey, London, one of the said beneficiaries, lodged objections to confirmation being granted to the petitioners.

A record was made up. On 6th February 1886 the Sheriff-Substitute ( Spens) granted warrant to the Commissary-Clerk to issue comfirmation as craved.

“ Note.—The point which is raised before me is I think a difficult and doubtful one, and I decide the point with great hesitation. Three wills are produced. The last of these is, as indeed all of them are, holograph, and would undoubtedly be binding were it not for the fact that the words “before these witnesses' appear and there are no

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witnesses' signatures as named on the document. It is, I think, settled law that a testator may prescribe formalities in addition to those required by law, and that if the document in which these are prescribed does not give effect to what he has laid down for himself, the will will be bad. The leading case is Naismith v. Hare, July 27, 1821, 1 Shaw's App. 65, where the House of Lords, reversing the judgment in the Court of Session, held that where a testator had stated on the testament in question ‘I hereto set my hand and seal,’ and a piece of it which was presumed to have contained the seal was found cut off, the will was inept. The whole question, of course, is one of presumed intention.. .. The presumption, it appears to me is that having prescribed for himself what be believed to be an essential, the testator must be held to have hesitated as to doing that which he thought necessary to make the will a binding deed.”. . .

Mrs Elizabeth Pursey appealed to the Sheriff (Clark) who adhered.

Mrs Pursey appealed to the Second Division of the Court of Session.

The Court pronounced this interlocutor:—

“Recal the interlocutors of the Sheriff-Substitute and of the Sheriff appealed against: Remit to the Sheriff with instructions to issue confirmation in favour of the petitioner J. Jones junior and Gavin Watson as executorns-ominate under the wills of 10th September 1875 and 10th September 1882, mentioned in the record, without prejudice to any questions that may be raised as to the validity of the said wills: Find the parties entitled to expenses out of the estate of the testator.”