Scottish Court of Session Decisions

Mr Peter Waddell, 5 Claremont Park, Leith, died without issue on 18th June 1895, leaving a trust-disposition and settlement and codicil dated 18th June 1886 and 24th October 1888 respectively. The testator's father had four children, of whom he was the survivor. Only one of them was married and had issue, viz., Mr Andrew Waddell. One of his children, Mrs Mary Waddell or Wilson, survived the testator; and another, William Wood Waddell, who predeceased him, left a child, Miss Alexina Waddell, who is in pupilarity. Andrew Waddell's third child, Elizabeth, died in 1880 unmarried. The testator was thus survived by a niece and a grand-niece, who were his nearest relations.

By the third purpose of his trust-disposition Mr Peter Waddell directed his trustees to pay the legacies therein mentioned, and inter alia, “to the said Elizabeth Waddell the sum of £6000 sterling; to William Wood Waddell, presently residing in No. 6 Mansfield Place, Edinburgh, son of my late brother Andrew Waddell, the sum of £5000 sterling; to Mrs Mary Waddell or Wilson, only surviving daughter of my said brother Andrew Waddell, the sum of £5000 sterling.” The further legacies contained in the clause, which were very numerous, amounting in all to about £40,000, and ranging in amount from £500 to £4000, were to distant relations, strangers in blood, and charities.

By the fourth purpose the trustees were ordered to deliver a certain picture to William Wood Waddell.

The fifth purpose provided—“That my trustees shall pay and deliver all such legacies, gifts, or provisions, and implement all such instructions as shall be contained in any codicil or any memorandum or writing by me clearly expressive of my will, though not formally executed, declaring that the same, whether formal or informal, shall be held and taken to be part and parcel of these presents.”

By the sixth purpose the residue, which amounted to about £100,000, was disponed to certain charitable institutions.

By the second purpose of the codicil the trustees were directed to deliver to the National Gallery the picture bequeathed to William Wood Waddell, “the bequest thereof in the fourth purpose of the said trust-disposition and settlement … having lapsed by the predecease of the said William Wood Waddell; and I revoke and alter the preceding trust-disposition and settlement in so far as is necessary to give effect to these presents, but no further or otherwise.”

The testator had on 27th August 1888 instructed his agent to prepare a codicil, and the draft contained a direction to pay “to my grandniece Alexina Waddell, daughter of my late nephew William Wood Waddell,… the sum of £1000.” This clause was deleted on the execution of the codicil on 24th October.

Subsequent to the testator's death a holograph writing by him in the following terms was found in his repositories:—“ August 27, 1888.—Annuit for life Mrs Wood Waddell,

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30 Queen's Crescent, for £100, £3000 codicil to my will for Alexina Waddell, my late nephew W. Wood Waddell, daughter Alexina Waddell, Peter Waddell, 5 Claremont Park, Links, Leith.” The testator on 29th August 1888 instructed the said John T. Mowbray to purchase an annuity of £100 on the life of Mrs Wood Waddell, and subsequently on 31st August 1888 he instructed Mr Mowbray to increase the amount of the annuity to £150. On 6th September 1888 an annuity of £150 on Mrs Waddell's life was purchased by Mr J. T. Mowbray.

Moses Adamson acted for some time as the personal attendant of the testator, but left his employment in May 1894. After the death of the testator there was found in his repositories a pencil holograph writing in the following terms:—“May 14th, 1894.—Moses Adamson, the sum of £100 hundred pounds, 14th May 1894. The sum of one hundred pounds, Peter Waddell.” There is added in ink “May 14, '89.” There is written on the back of the paper in ink, “May 14th 1849, pay to Moses Addimson one hundred pounds stg.” The testator drew from the Bank of Scotland, Leith, monthly, certain sums to enable him to meet the house bills, &c. On 14th May 1894 he signed a cheque for £100 on the said bank in favour of Moses Adamson. That cheque was afterwards cancelled, and on the same date he signed another cheque for the same amount, also infavour of Moses Adamson, who drew the money from the bank and handed it to the testator.

A special case was presented to the Court by (1) Mr Peter Waddell's trustees; (2) Alexina Waddell, and her mother as her tutor or guardian; (3) Mrs Wood Waddell as an individual; and (4) Moses Adamson.

The questions submitted for the consideration of the Court were—“(1) Are the second parties entitled to the legacy of £5000 bequeathed to the said William Wood Waddell? (2) Are the second and third parties respectively entitled to the sum of £3000 and to the annmity of £100 mentioned in the holograph writing of 27th August 1888? (3) Is the party of the fourth part entitled to the sum of £100 mentioned in the holograph writing of 14th May 1894?”

Argued for the first parties—1. The writing of 27th August 1888 was clearly intended only as a memorandum for the use of the writer in his consultation with his agent. There was no indication on the face of it of any testamentary intention. Neither the use of the word “annuity,” nor of the word “codicil,” in the positions in which they were, created any such presumption. The directions as to informal documents contained in the fifth purpose of the will applied only to such documents as were clearly of a testamentary nature, but had some merely technical defect, e.g., such as were unsigned, but to which effect might be given in accordance with the decision in Lowson v. Ford, March 20, 1866, 4 Macph. 631; Munro v. Coutts, July 3, 1813, 1 Dow 437; Hamilton v. White, June 25, 1882, 9 R. (H. of L.) 53. 2. The second argument applied a fortiori to the writing of May 14th 1894, which was merely practice for signing a cheque. 3. The Court would not readily extend the conditio beyond descendants. Thus it was held in the case of Hall v. Hall, March 17, 1891, 18 R. 691, at 698, that it did not apply to brothers. In the case of nephews the testator must clearly have placed himself in loco parentis— Bogie's Trustees v. Christie, January 26, 1882, 9 R. 453, at 456. There was no case where it had been held that this relation was established, unless the will was of the nature of a family settlement. That was characteristic both of Bryce's Trustees and Forrester's Trustees (quoted infra). But here, on the contrary, there was a special bequest to an individual nephew contained in a clause which consisted of a list of legacies to different individuals, to all of whom the testator must be held to have been in loco parentis if the doctrine were to be applied. There was no case where the doctrine had been extended to such a bequest— Allan v. Thomson's Trustees, May 30, 1893, 20 R. 733; Douglas' Exeeutors, February 5, 1869, 7 Macph. 504; Blair's Executors v. Taylor, January 18, 1876, 3 R. 362.

Argued for second and third parties—1. The onus of disputing the testamentary character of the document of 27th August lay on the first parties. It was prima facie testamentary, being signed and dated, and containing words which indicated that it was not merely a memorandum. Moreover, there was an express provision in the will dealing with informal documents of this kind. 2. The conditio did apply to a bequest to nephews and nieces unless it could be shown that there was a special delectus personæ. There were here only three near relatives at the time of making the will, and the testator did not pick and choose, but provided substantially for them all. The fact that the sums bequeathed were small compared with the corpus of the estate did not exclude the application— Bryce's Trustees, March 2, 1878, 5 R. 722. Nor was there any distinction between a bequest of a share of residue and a general provision such as this— Forrester's Trustees v. Forrester, July 12, 1894, 21 R. 971. 3. If the writing of 27th August were held to confer a right to £3000 on Alexina Waddell, that would not preclude the application of the conditio, there being no reference to the lapse of the pecuniary legacy— Bryce's Trustees, supra.

Argued for fourth party—The document of 14th May fell under the description of informal documents to which validity was to be given under the 5th purpose of the deed. There was on the back a specific direction to pay, which though not in gremio of the document might be treated as such as explaining its contents.

At advising—