Scottish Court of Session Decisions

Hugh Burnie died at Wigtown on 3rd December 1893. After his death there were found in the deceased's house two holograph testamentary writings. The first was in the following terms—“In the event of my death without heirs of my body, I leave and bequeath to Christina Shaw or Lawrie, wife of Sampson Lawrie, tailor, Liverpool, the property in Whithorn, belonging to her late brother James Shaw, Whithorn, together with the railway stock in my name, of Portpatrick and Wigtownshire Joint Committee, with a legacy of £10 sterling for dividends drawn. As witness my hand at Wigtown the 22nd day of November 1893 years.—(Signed) Hugh Burnie.” The second was a holograph trust-disposition and settlement in the following terms—“I, Hugh Burnie, residing in Agnew Crescent, Wigtown, in order to settle my affairs, Do hereby give, grant, assign, and dispone to and in favour of John Smith, Sheriff-Clerk of Wigtownshire, and Charles Arbuthnot M'Lean, law-agent, Wigtown, all and sundry lands and heritages, goods and gear, debts and sums of money, that shall belong to me at the time of my death, and 1 nominate and appoint the said John Smith and Charles Arbuthnot M'Lean my sole executors, and I declare the purposes of the trust to be—(first) for payment of my just and lawful debts, deathbed and funeral expenses; (second) for payment of following specific legacies to persons after named—To Margaret Thompson, daughter of Margaret Thompson, sometime in Culkae, £20 sterling; to Janet M'Culloch, Sorbie, £10 sterling;

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to John M'Keachie, Wigtown, and his mother, £20 sterling between them to; John M'Adam, son of the late William M'Adam, Clendrie, £20 sterling; to Mrs Heron, Glasgow, and Mrs Bryan, Monreith, £10 sterling each; to Mrs Broadfoot, Drough-dool, the body clothes and silver plate in house belonging to my late mother; and as both my mother and self were much benefited by the inhabitants of Wigtown, the rest residue of our joint means and estate to be divided as follows—eight-tenths to the poor of the parish of Wigtown, one-tenth to the poor of the parish of Kirkinner, and one-tenth to the poor of the parish of Glasserton, said sums to be divided at the discretion of my said trustees; witness my hand at Wigtown, the 30th day of November 1893 years.—(Signed) Hugh Burnie. I have left special instructions respecting Mrs Sampsons Lawrie's legacy, and would like trinkets disposed of as follows to following kind friends if they will accept—Gold watch and chain to the Rev. Mr Paton; nickel watch to Miss Callie, Monreith Village; Shakespeare's Plays and all old china, crystal, and glass to Mr C. A. M'Lean; gold and diamond scarf ring to Mr Howatson, Barness; gold studs and walking stick, Malacca cane, to Mr David M'Kenna, Malzie; aneroid barometer to Mr Russell, Balsier; whatever books he may choose to Mr Russell, Knockann; gold brooch of my mother to Miss Jorie, Whithorn.”

Besides the heritable property in Whithorn (worth about £70) and the railway stock (worth about £11) referred to in the holograph writing of 22nd November, the said Hugh Burnie died possessed of the following estate—1, Other heritable property in Whithorn, valued at £350; 2, leasehold property in the village of Monreith, which may be worth about £50; 3, personal estate, consisting of cash in house, money in bank, stock-in-trade, book debts, and household furniture, amounting in gross to about £840.

John Smith declined to accept the offices of trustee and executor under the trust-disposition of 30th November 1893, but Charles Arbuthnot M'Lean accepted office as trustee and executor.

In these circumstances questions arose with regard to the distribution of the deceased's estate in consequence of the existence of the various holograph writings above referred to. Mr M'Lean maintained that the holograph writing of 22nd November was invalid and inoperative, and conferred no rights upon Mrs Lawrie in the heritable property and railway stock thereby bequeathed to her, on the ground that that deed must be held as impliedly revoked by the later trust-disposition and settlement of 30th November 1893. He also maintained that the holograph writing appended to the said trust-disposition and settlement was invalid and inoperative, in respect that it was undated and unsigned by Hugh Burnie.

Mrs Lawrie, on the other hand, maintained that the said holograph writing of 22nd November had not been revoked, but must receive effect, and that she, by virtue of the bequests contained in it, had right to the said heritable property in Whithorn and the said railway stock. Mrs Lawrie, the Rev. Robert Paton, and the other persons mentioned in the holograph writing appended to the holograph settlement, further maintained that this holograph writing, although unsigned, was valid and effectual, and that they were in right of the bequests therein specified.

For the decision of these questions a special case was presented to the Court by (1) Mr M'Lean, (2) Mrs Lawrie, and (3) the Rev. Robert Paton and the other persons mentioned in the unsigned holograph writing appended to the holograph settlement.

The questions at law were—“(1) Is the said holograph writing of 22nd November 1893 valid to the effect of entitling the said second party to the bequests thereby made by the said Hugh Burnie in her favour, or, on the other hand, has the said holograph writing of 22nd November 1893 been impliedly revoked by the said trust-disposition and settlement of the said Hugh Burnie dated 30th November 1893? (2) Are the bequests in favour of the third parties contained in the said holograph writing appended to the said trust-disposition and settlement of 30th November 1893 valid or invalid?”

Argued for first party—The postcript to the trust-disposition and settlement being unsigned was invalid and inoperative, and could not receive effect— Pettigrew's Trustees v. Pettigrew, December 6, 1884, 12 R. 249; Goldie v. Sneddon, November 4, 1885, 13 R. 138; Skinner v. Forbes, November 13, 1883, 11 R. 88, Lord President's opinion, p. 90; Dunlop v. Dunlop, June 11, 1829, 1 D. 912. If the unsigned postcript was invalid, then the legacies therein could not receive effect, and the earlier deed must be held to be impliedly revoked by the trust-disposition and settlement, even although there was no express revocation of the former in the latter— Brander's Trustees v. Anderson, July 19, 1883, 10 R. 1258.

Argued for the second and third parties—The unsigned addendum was valid and effectual. It was written unico contextu with the main writing, and was thus connected with a formal, regular, and complete deed—Stair, iv. 42, 6; Bell's Lectures on Conveyancing, i. 82; Gillespie v. Donaldson, December 22, 1831, 10 S. 174; Spiers v. Home Speirs, July 19, 1879, 6 R. 1359. The small bequests contained in the addendum were therefore valid, and the deed of 22nd November had not been revoked by the testator.

At advising—