Scottish Court of Session Decisions

Miss Janet Scott Morrison died on 7th October 1893 leaving several mortis causa writings of a testamentary nature holograph of the deceased, the first being dated 31st August 1893, the second being undated, the third dated 31st August 1893, and the others being undated. These documents were all enclosed in an envelope, and on the envelope were these words—“My will, Janet S. Morrison,” in her own handwriting.”

By the first of these testamentary writings Miss Morrison bequeathed certain pecuniary legacies to different persons, amounting in all to £1000, under the declaration that these legacies were to be paid free of legacy-duty. The document then proceeds as follows:—“The Thousand pounds so bequeathed is in the hands of my Brother William, Merchant, Leith; also Two hundred pounds, which latter if not expended by me before my decease & still in his hands will be—to be taken for all just and lawful debts to give mournings to Jessie my servant to the extent of Two pounds—also mournings to Nephew John Morrison's wife to the extent of Five Pounds—Any residue to be given to Janet Millar, residing at Castle-Douglas”—Signed “Janet S. Morrison; witness, Jessie Robertson.” Miss Millar received a legacy of £100 under the former part of the settlement. In the second testamentary writing, styled by the deceased “Codicil No. 1,” Miss Morrison increased the sums for mournings, and nominated Mr William F. Millar, merchant, Leith, her sole executor, giving him £20 for his services. The other testamentary writings made specific bequests to different parties for certain articles of furniture, &c.

Mr Millar, as executor-nominate, was confirmed by the Sheriff of the Lothians

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and Peebles. He found that the deceased's personal property amounted, without deduction of debts, to £1514, 19s. 6d., including the above-mentioned sums of £1000 and £200. The personal debts of the deceased were of very small amount.

A special case was presented by (1) the executor, (2) the residuary legatee, (3) Miss Morrison's next-of-kin, for the opinion of the Court upon the following questions of law:—“(1) Do the words ‘Any residue to be given to Janet Millar,’ occurring in the first holograph testamentary writing referred to, give right to the said Janet Millar only to any balance remaining of the £200 mentioned in the said writing after deduction of debts and the sums for mournings left by the testatrix; or, Are these words sufficient to carry any free moveable estate belonging to the deceased at the date of her death after providing for the specific legacies and bequests left by the testatrix, and the debts and expenses of the executry? (2) In the event of its being held that the words in question refer only to the balance of the said sum of £200, Do the funeral and executry expenses, including the inventory and legacy duties, or any of these items, fall to be charged against or deducted from said sum of £200 so far as that sum will meet them; or, Is it only debts due by the deceased before her death that are to be deducted therefrom, and the sums left for mournings?”

The residuary legatee argued—The presumption was for testacy. It was true that the testatrix had divided the great part of her estate into specific legacies, but it was plain that she considered there must be more estate than she was actually dealing with, because she directed the legacies to be paid free of legacy-duty. The deed was a settlement disposing of her whole estate and appointing an executor. There was therefore nothing in the context to show that the testatrix did not desire to leave the residue of her whole estate to the person named as residuary legatee—Jarman on Wills, i. 723; Williams on Executors, ii. 1317; Jull v. Jacobs, July 10, 1876, L.R., 3 C.D. 703.

The next-of-kin argued—The presumption against intestacy might be rebutted, and it was plain that in this case the testatrix was dealing solely with the specific legacies she had given, and meant that any small sum over after paying debts should go to Miss Millar, but she had not disposed of her whole estate by the legacies she left, and therefore the residue of the whole estate, excluding these sums of £1000 and £200, went to the next-of-kin— Hastings v. Hane, March 16, 1833, 6 Symon, 67; Ommaney v. Butcher, July 22, 1823, 1 Turner & Russell, 260; Jull (cited supra).

At advising—