Scottish Court of Session Decisions

This was a petition presented, under section 39 of the Conveyancing (Scotland) Act 1874, by Robert Nisbet, executor of the deceased Miss Agnes Nisbet, Glasgow. the petition stated that Miss Agnes Nisbet died on 6th January 1896, leaving, among other testamentary writings, a will and codicil dated 26th November 1892; that the said will and codicil were subscribed by Miss Agnes Nisbet, and bore to be attested by William Barton, and Dorothea S. Kerr; and that the designations of the said witnesses were not contained in the will and codicil, nor appended to their signatures.

The petition further stated that the said will and codicil were prepared on the instructions of Miss Agnes Nisbet by Mr William Meikle, Actuary of the Glasgow Savings Bank; that the will was partly written and partly printed, the printed part being a form supplied by the said Bank, and the written form being in Mr Meikle's handwriting, with the exception of the date in the testing clause, which was in the handwriting of Dr David Smith, Glasgow, and that the codicil was also written by Mr Meikle, with the exception of the date, which was written by Dr David Smith.

The prayer was in these terms—“To allow the petitioner a proof of the averments contained in this petition, and thereafter to declare that the will and codicil above mentioned were subscribed by the said Agnes Nisbet, the granter or maker thereof, and by the said William Barton and the said Dorothea Stewart or Kerr, the witnesses by whom the said will and codicil bear to be attested.”

The Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 39, enacts that “No deed, instrument, or writing subscribed by the grantor or maker thereof, and bearing to be attested by two witnesses subscribing, and whether relating to land or not, shall be deemed invalid or denied effect according to its legal import because of any informality of execution, but the burden of proving that such deed, instrument, or writing so attested was subscribed by the grantor or maker thereof, and by the witnesses by whom such deed, instrument, or writing bears to be attested, shall lie upon the party using or upholding the same, and such proof may be led in any action or roceeding in which such deed, instrument, or writing, is founded on or objected to, or in a special application to the Court of Session, or to the Sheriff within whose jurisdiction the defender in any such application resides, to have it declared that such deed, instrument, or writing was subscribed by such grantor or maker and witnesses.”

On 16th December 1896 the Court allowed the petitioner a proof of the averments contained in the petition, that the will and codicil mentioned and founded on therein were written, subscribed, and witnessed by the persons, and as mentioned in the petition; and granted diligence at the instance of the petitioner against witnesses and havers; and granted commission for their examination to Professor Moir, Glasgow.

The import of the proof thus allowed, and as reported by the Commissioner, was that the will and codicil had been signed and subscribed and averred.

The petitioner cited Addison, &c., February 23, 1875, 2 R. 457, and argued that in terms of sec. 39 of the Conveyancing Act of 1874 the petition should be granted. It made no difference that the will was partly printed and partly written. [ Lord Kinnear referred to sec. 149 of the Titles to Land Consolidation Act 1868 (31 and 32 Vict. cap. 101).]