Scottish Court of Session Decisions

The late Mr George Calder, merchant in Edinburgh, died on 24th December 1889, survived by his widow and by six children. The eldest of these children, Mrs Margaret M'Nair Calder or Millar, one of the parties of the second part, was married on March 13, 1888, to Thomas Millar, the other party of the second part. Of this marriage there was one child, Margaret M'Nair Millar, born on July 28, 1889, who, with her father as her administrator-in-law, was the party of the third part.

Mr Calder left a free moveable estate of about £8200, and heritable estate, including his own dwelling-house, to the value of about £2000.

Mr Calder had executed on 3rd March 1888 a trust-disposition and settlement which had been prepared for him by his law-agents, and this trust-disposition and settlement was at the date of his death in the hands of his law-agents. The parties of the first part were the accepting trustees named in that settlement.

By the fourth purpose of this deed Mr Calder directed his trustees “to hold the whole residue of my means and estate hereby conveyed for behoof of such of my children as shall survive me and attain the age of twenty-five years complete if sons or shall attain said age or be married under said age if daughters, and the lawful issue of such of my children as shall die without be2oming entitled under this purpose leaving lawful issue, equally among said children and issue per stirpes; and shall pay over their shares to my sons surviving me on their attaining said age or on my death, if they shall then have attained said age, and shall set apart, as after mentioned, the shares of my daughters surviving me on their attaining said age or being married under said age, whichever event shall first happen, or on my death if they shall previous thereto have attained said age or shall have been married; subject always to the retention by my trustees during the life of my said wife, in the event of her surviving me, of so much of my means and estate as shall be required to meet said annuity or restricted annuity and liferent… . And as regards the shares of such of my said children as are daughters, my trustees shall, on and after the arrival of the period of payment of their shares, hold in trust and apply the shares of such daughters, or place the same in the names of other trustees, with like powers, privileges, and immunities as their own, in trust for such daughters respectively in liferent, for their liferent use only, and for the lawful issue of said respective daughters, or failing lawful issue, for their next-of-kin, in fee.”

After Mr Calder's death there was found in his repositories, in an iron safe, along with titles to certain heritable properties, policies of insurance of those properties, bank pass-books, and other papers, a large envelope, backed thus, viz.—“Copy trust-disposition and settlement by George Calder, dated 3rd March 1888—see inside.” This backing was in Mr Calder's handwriting, and the envelope contained, among other papers, a copy of the trust-disposition and settlement the original of which was in the hands of his agents. On one side of the envelope was a copy in Mr Calder's handwriting of a letter written and sent by him to his agents on 9th March 1888, and below that a writing also holograph of Mr Calder, and subscribed with his initials. The latter writing was in these terms—“Margret is to get nothing of mine whatsoever having no marriage-contract in her favour which is defined in my trust-disposition and settlement.—G. C.” The said letter was duly received by Mr Calder's agents, and was of the following tenor—“ Redlac, Colinton, 9 th March 1888.—Dear Sir—I duly received your letter of 3rd curt. with trust-disposition prepared by you for me, which I now return for your safe keeping until required. — Yours truly, Geo. Calder.” They never received any instructions from Mr Calder to have the trust-disposition therein referred to altered, and they retained the custody thereof till his death. On the other side of the envelope were five holograph writings or jottings signed by Mr Calder, and, except one, dated. All the dates are subsequent to the date of the trust-disposition and settlement. The following is a specimen:—

no not anything

“Margret is to get nothing of mine whats oever having no marriage-contract in her favour which is defined in my Trust-Disposition & Settlement.

(Initld) G. C.”

“ Margaret to get nothing on account whatever of her hatred and conivence against me.

(Signed) Geo. Calder, 9th Mar. 1888.”

“Mr Fraser, W.S., ‘ has the original,’ of Fraser, Stoddart, & Ballangal,

W.S., Castle Street, Edinbh,

knows abt abt Margaret from what I said to him and that she is to get nothing whatever of anything whatsoever belonging to me. (Signed) Geo. Calder. Decr 14 1888.”

There was also found in the same iron safe a writing on two separate sheets of paper, holograph of Mr Calder, dated on the first sheet 18th December 1888, and on the second sheet 8th December 1888. These

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contained in great part complaints of harsh conduct and want of consideration on the part of his wife and daughter towards himself, and also of the secrecy with which his daughter's marriage had been carried through in spite of his known hostility. The material part of these writings consisted in the words which followed, viz.—“Under these circumstances and from the abuse and violance I have receive from the said now Mrs J. Miller and her sarcastic behavour toward me, I hereby exclude the said Mrs J. Miller from any right title or interest in my estate personal or moveable whatsoever and not to give her as much as one farthing. Witness my hand written by me this 18th day of Decr 1888. (Signed) Geo. Calder. 11 o'cl. a.m.”

On 20th June 1890, while an examination of some of Mr Calder's papers was being made at his house at Redlac by the agents for his trustees, there was found in a wardrobe in his bedroom a letter by Mr William Stuart Fraser, dated 27th February 1888, within an envelope addressed to Mr Calder, bearing Colinton and Juniper Green postmarks of date 28th February 1888, on which envelope there is the following pencil memorandum or jotting in Mr Calder's handwriting—“Trust-Disposition and Settlement. Codicil to exclude Margret totally”—but no instructions were ever given by Mr Calder to his agents to prepare such a codicil.

Questions having arisen as to the validity and effect of the various holograph writings executed by Mr Calder, the parties of the first part contended that the holograph writings were valid and effectual testamentary writings, and that their effect was to revoke the provisions of the trust-disposition and settlement in so far as the provisions were therein contained in favour of Mrs Millar and her children were concerned.

The parties of the second and third part contended that the said holograph writings were mere jottings or scrawls written hastily and in fits of anger, and onght not to be given effect to as testamentary writings, or expressing the concluded intentions of the deceased Mr Calder. The parties of the third part further contended that, even assuming that Mrs Millar was excluded by said holograph writings from participating in her father's succession, her children's interests under the said trust-disposition and settlement were not affected thereby.

The parties asked the opinion and judgment of the Court upon the following questions of law, viz.—“1. Are the said holograph writings of Mr Calder, or any of them, valid and effectual testamentary writings? 2. Have the said holograph writings, or any of them, the effect of revoking the provisions in Mrs Millar's favour made by the trust-disposition and settlement of the deceased George Calder? 3. Have the said holograph writings, or any of them, the effect of revoking the provisions in favour of the child or children of Mrs Millar made by the said trust-disposition and settlement?”

Argued for the first parties—(1) The general rule applicable is found in Colvin v. Hutcheson, 12 R. 947 (Lord M'Laren's opinion, 953, and the Lord President). Here there was an informality in the writings, but they were found in a safe, and along with a copy of the trust-disposition. That the codicil was upon odd sheets of paper was not material— Spiers, 6 R. 1359. The expression jotted upon the envelope was not adverse; it might mean a codicil either was or was to be executed. If the document was part of deceased's will, Mrs Millar was unquestionably excluded. (2) But Mrs Millar's child was also excluded. The will directed equal division among children and their issue. Mrs Millar being excluded, the child's participation ceased, as its share was derivative. [ Lord Kinnear—How can a right of fee be derived from a liferent?] [ Lord President—The codicil merely revokes what Margaret got, and she got a liferent only.]

Argued for the second and third parties—The child clearly was not deprived, as its fee was a separate and independent interest from the liferent of its mother. But neither was the mother deprived. The writings founded on were not testamentary in their character. They were merely abusive epistles, at most showing a floating intention to alter, and no instructions were given to carry out the intention. In Munro v. Coutts, 1 Dow's App. 437, even a holograph codicil sent to an agent to have a formal deed prepared on same lines was held invalid. Here the agents kept the trust-disposition, and if alteration had been intended they would have got instructions, but they never did. Similar cases were Cunningham v. Murray's Trustees, 9 Macph. 713, and Stainton, 3 S. 363.

At advising—