Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Storrar and Others v. Small and Others [1888] ScotLR 26_43 (6 November 1888)
URL: http://www.bailii.org/scot/cases/ScotCS/1888/26SLR0043.html
Cite as: [1888] SLR 26_43, [1888] ScotLR 26_43

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 43↓

Court of Session Inner House First Division.

Tuesday, November 6. 1888.

26 SLR 43

Storrar and Others

v.

Small and Others.

Subject_1Succession
Subject_2Testament
Subject_3Implied Revocation.
Facts:

A testatrix by general disposition and settlement conveyed to her niece her whole heritable and moveable estate, under burden of debts and legacies, on the condition that her niece should pay any other legacies which the testatrix might think proper to leave by any writing under her hand, clearly indicative of her intention, although not formally executed. She appointed her niece her executrix. By a codicil to this will she revoked the conveyance of her moveable estate, and conveyed the same to other executors, directing them to fulfil any testamentary instructions left for them under her hand, and providing that any surplus of the moveable estate, after meeting debts and bequests, should be paid to her niece, but that any deficiency thereof should form a burden on her heritable estate. By a holograph document, addressed to her niece of date intermediate between the settlement and codicil, she directed that her heritable property should be sold, and that the price thereof, together with any surplus after payment of expenses, should be deposited in bank for behoof of her niece in liferent and certain others in fee. Held that the holograph writing was inconsistent with, and therefore impliedly revoked by the codicil, which was of later date.

Headnote:

Miss Lillias Smail died on 21st September 1885, leaving the following testamentary writings—1. A general disposition and settlement dated 29th May 1883, to which was appended a codicil,
Page: 44↓
written on the same paper, dated 3rd August 1885. 2. A holograph writing addressed to “my niece Margaret Smail,” and bearing date 3rd September 1884.

By her disposition and settlement she conveyed her whole estate and effects, heritable and moveable, to her niece Margaret Smail, and her heirs and assignees, under burden of payment of her debts and various small legacies, and also under the condition that her niece Margaret Smail should “also make payment of any other legacies or bequests which I may think proper to leave by any writing under my hand, clearly indicative of my intention, although not formally executed.” Margaret Smail was appointed sole executrix under this deed.

By the codicil dated 3rd August 1885 the testatrix, on the narrative that she had resolved to make sundry alterations on her settlement, recalled the appointment of Margaret Smail as her executor. She revoked the conveyance of her moveable means and estate to her niece, and appointed other parties to be her executors, and conveyed to them her whole moveable means, estate, and effects. The codicil proceeds further—“I authorise and direct my executors to implement and carry into effect any instructions or bequests which I may think proper to leave for them by any letter or document signed by me, although not legally tested; and in case there be a surplus of my moveable estate after meeting the debts and bequests herein and before written (excepting the legacy hereby revoked), I direct my executors to pay over the same to the said Margaret Smail, my niece; and, on the other hand, in the event of there being a shortcoming, I declare and provide that the same shall be a burden on my heritable estate conveyed to her, and be payable and paid by her accordingly.”

The holograph writing was addressed “To my niece Margaret Smail,” and referred in gremio to “my will.” After providing for the disposal of sundry articles of furniture, trinkets, and books, it proceeds—“My house to be sold as soon as possible, and if there is any money over paying all expenses is to be added to whatever is recieved for the house, and depositted in the Agra Bank for a small income to you for life. at your death the the capital to be equally devided amongst your sisters for there families.” This writing had been left by the deceased in a sealed packet in the custody of a friend six months before her death, with whom it remained till after that event, which occurred on 21st September 1885, and therefore it was clearly of date between the settlement of 29th May 1883 and the codicil of 3rd August 1885.

In these circumstances questions arose as to the validity of the holograph writing, and its effect on the distribution of the estate of the deceased if it were a valid and subsisting document, and a Special Case was presented to the Court to have these questions decided. No questions, however, were raised as to the provisions in the holograph writing for the disposal of the various articles of furniture, trinkets, and books.

The first parties thereto were the executors under the codicil of 3rd September 1885; the second party was Miss Margaret Smail, niece of the testatrix, and disponee under the settlement; and the third parties were Margaret Smail's surviving sisters and the families of two deceased sisters.

The questions submitted to the Court were—“(1) Is the holograph writing dated 3rd September 1884 revoked by the codicil, or is it a valid and subsisting testamentary document? (2) If the first part of the first question be answered in the negative, are the first parties bound to sell the said heritage, and to deposit the proceeds, along with the amount of the free moveable estate, in the Agra Bank on a receipt in favour of the second party in liferent, for her liferent use allenarly, and her sisters for their families in fee; or in what terms should the deposit-receipt be taken?”

The second party argued—The holograph writing was not a valid and subsisting document. Its terms were incompatible with the codicil of later date, and so it was impliedly revoked by that deed— Bertram's Trustees v. Mathieson's Trustees, March 10, 1888, 15 R. 572.

The third parties argued—No doubt it was difficult to reconcile the terms of the holograph writing with those of the codicil, but it was not impossible, and mere difficulty in reconciling them was not enough. The holograph writing had not been expressly revoked, and in the absence of impossibility of reconciling its terms with the codicil, it must be held that it was not impliedly revoked, and was therefore a valid and subsisting document.

At advising—

Judgment:

Lord President—In this case the trust-disposition and settlement by the testatrix was dated on the 29th of May 1883. It is a tested instrument, and therefore there is no question of its date. In like manner there is no question about the date of an attested codicil appended to the deed and written upon the same paper, and which is dated on the 3rd August 1885. Now, the holograph writing founded on by some of the parties, and which of course does not prove its own date, bears to be dated 3rd September 1884. Although the date of that writing cannot be proved by the writing itself, it is established, by a clear admission in the case stated, that the document must have been written some time between the trust-disposition and the codicil of 3rd August 1885. It is said that at the date of the deceased's death the holograph writing was in the possession of David Storrar, and that the deceased had been in the habit, when she went from home, of leaving a sealed packet with Mr Storrar, which was given back to her on her return home. Several months before her death, when she was leaving home, she gave a sealed packet to Mr Storrar to be retained till her return. On her return the packet was allowed to remain in Mr Storrar's custody, and at the date of her death it had been in his possession for about six months. Now, the death of the testator occurred on the 21st September 1885, and as the codicil is dated 3rd August 1885, there is a very short interval between the date of the codicil and of the death of the testatrix, and therefore the holograph writing must have been out of her possession and in David Storrar's hands for some months before her death, and consequently before the codicil of 3rd August 1885 was made.

On the face of the codicil itself it is quite plain that it was intended to operate as an alteration of the original settlement. The effect of

Page: 45↓

this original settlement was very much in favour of Miss Margaret Smail. The codicil is less favourable to her, but the intervening holograph writing, as we are I think entitled to call it, is still more unfavourable.

In these circumstances the question comes to be, whether the codicil necessarily from its terms operates as a revocation of the holograph writing executed in the interval between the original settlement and the codicil? It seems to me that the conclusion which we must adopt is that it does so operate. If the holograph writing was to receive effect, it would deprive Margaret Smail altogether of the heritable property, for if that holograph writing was to be brought into operation she would not have the disposal of that property at all, as the testatrix has there left a direction that it should be sold, and that Margaret Smail should have a liferent of the balance left after the payment of expenses.

Now, the codicil of 3rd August 1885 is quite inconsistent with that direction. That codicil assumes that Margaret Smail is to be proprietor of the heritable estate, and directs that certain things shall be payable out of the heritable estate. The two things are incompatible, and the natural conclusion is that the later deed must receive effect, operating as a revocation of the principal part of the holograph writing. I am therefore of opinion that we should answer the first branch of the first question in the affirmative,

Lord Mure—It appears to me that the holograph writing which was handed over to David Storrar is plainly dated before the codicil of 3rd August 1885. When I look at that codicil I cannot think it consistent with the holograph writing, because the material alteration in the settlement made in the holograph writing is completely superseded by the directions in the codicil. Miss Margaret Smail is left as executrix by the holograph writing, and is directed to sell the house, and after payment of expenses she is to have a liferent of the balance. In the codicil the moveable estate is conveyed to other executors; there is a revocation of her appointment as executrix, an appointment of new executors, and she remains as the disponee in the heritable estate. In the codicil the testatrix says—“I authorise and direct my executors to implement and carry into effect any instructions or bequests which I may think proper to leave for them by any letter or document signed by me although not legally tested: And in case there be a surplus of my moveable estate after meeting the debts and bequests herein and before written (excepting the legacy hereby revoked), I direct my executors to pay over the same to the said Margaret Smail, my niece, and, on the other hand, in the event of there being a shortcoming, I declare and provide that the same shall be a burden on my heritable estate conveyed to her, and be payable and paid by her accordingly.” Now, I think that the holograph writing clashes with these directions in the codicil, and as the latter is of later date the holograph writing is impliedly revoked by it.

Lord Adam—We have here three deeds to construe—the original trust-disposition and settlement, the holograph writing, and the codicil. There is no doubt that the holograph writing is of earlier date than the codicil, and therefore as it is inconsistent with the provisions of that codicil, these provisions must prevail.

In my opinion the testatrix intended her whole estate, heritable and moveable, to be disposed of by the trust-disposition and settlement and codicil. These two deeds do dispose of all her estate, heritable and moveable. Therefore we cannot sustain the holograph writing because it is inconsistent with that view. By the trust-disposition and settlement the testatrix left the whole of her estate to Margaret Smail. As I read the codicil she did not alter her disposition of the heritable property to Margaret Smail. She altered her disposition of the moveable property and appointed other executors to carry out her intentions, but in this codicil, which is the last deed, she disposed of the whole of her moveable estate to the executors appointed, who were directed—[ His Lordship here read the terms of the codicil quoted above]. Here there is a clear instruction to follow—to pay to Margaret Smail after meeting “the debts and bequests herein and before written,” and nothing more. Margaret Smail is to get the surplus when the moveable estate is disposed of. The other side wish to incorporate something else into the clause, namely, after meeting the debts and bequests “herein and in another document before written,” where there is an instruction to pay other debts and bequests, and to pay the surplus to her niece. The testatrix has in the codicil disposed of her whole moveable estate, and directed the surplus to be paid to Margaret Smail, and therefore Margaret Smail is to get the benefit of that, although her appointment as executrix is recalled. The reading we are asked to adopt is, that after meeting certain debts and bequests the moveable estate is to be paid to her for distribution in terms of the instructions in the holograph writing, and lastly that the surplus is to be paid to Margaret Smail for her own use. If the testatrix had wanted these things paid she would have directed her executors to pay them.

When we come to deal with the heritable estate it is clear that we cannot read the codicil without seeing that the disposition of the heritable property to Margaret Smail must stand, because the testatrix in her codicil directs—“And on the other hand, in the event of there being a shortcoming, I declare and provide that the same shall be a burden on my heritable estate conveyed to her, and be payable and paid by her accordingly.” Here there is a burden laid on the heritable estate conveyed to Margaret Smail. If effect is to be given to the holograph writing there is a burden on nobody. Margaret Smail is there directed to sell the heritable estate, and to pay this and other debts, and the balance is to remain moveable estate. If we were to give effect to the holograph writing that would be the result, and quite contrary to the provisions of the codicil. The direction in the holograph writing to convert and deposit the balance in bank is quite opposed to the direction in the codicil that, in the event of there being a shortcoming, “the same shall be a burden on my heritable estate.” The codicil clearly recognises that the property is to remain the property of

Page: 46↓

Margaret Smail subject to the burden I have mentioned, and I humbly think that the codicil must receive effect.

Lord Shand was absent.

The Court answered the first branch of the first question in the affirmative.

Counsel:

Counsel for First and Third Parties— Macfarlane Agents— H. & H. Tod, W.S.

Counsel for the Second Party— Guthrie. Agents— Tait & Crichton, W.S.
1888