Scottish Court of Session Decisions

Mrs Forbes died 4th May 1896 leaving a trust-disposition and settlement dated 12th July 1893, which was formally executed and tested. It narrated that the truster considered “that my means have considerably increased since I made my former will in 1869, and that I consider that I had

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sufficiently provided for my relatives by the legacies then left them, and that I am desirous that the accumulations since that date should be devoted to purposes of a religious, charitable, or benevolent kind, and that I have with that view from time to time added codicils to my will of 1869; but it now appears to me expedient to consolidate my settlements.”

By the third purpose the trustees were directed to make payment of the following legacies—“To the children of my late cousin John Stuart, saddler in London, to be equally divided between them, £800 sterling; to the children of my late cousin Mrs Brodie the like sum of £800, to be equally divided between them; to the children of my late cousin Betsy Cox, sister of the said late Mrs Brodie, the sum of £500, to be equally divided between them; to the children of my late cousin Mrs Jane Smith, residing in Antigua Street, Edinburgh, the sum of £800, to be equally divided between them; and to Mary Jessie Smith, one of said children, £300 sterling in addition to her share of said £800: Declaring that it is my wish that she should be referred to by my trustees for any information as to my relatives they may require, and I request her to give them all assistance in this or any other matters as to which they may apply to her; to the children of my late cousin John Macfarlane, son of my late uncle Alexander Macfarlane, Perth, the sum of £800 sterling, to be equally divided between them; to the other sons of my late uncle, the said Alexander Macfarlane, the sum of £1000, to be equally divided between them; to my cousin Mrs Isabella Fraser, of Edinburgh, the sum of £800 sterling, whom failing, to her children, to be equally divided between them; and to my cousin Daniel Macfarlane, the brother of the said Isabella Fraser, the sum of £500, whom failing to his children, to be equally divided between them: Declaring as to the legacies hereby given under the third purpose of this trust, that in the event of the decease of any of said legatees during my lifetime leaving issue, such issue shall take their parents share, to be equally divided amongst them if more than one; and in the event of any of the said legatees predeceasing me or the term of payment of said legacies without issue, the share of such predeceaser shall be payable to his or her surviving brothers or sisters equally between them, or to the issue of any brothers or sisters who may have predeceased me or the term of payment.

By the fifth purpose the trustees were directed “to pay any legacies and to carry out any instructions I may give by any writing under my hand clearly expressive of my wishes, although the same may not be formal.”

This trust-disposition was in the hands of Mrs Forbes' law-agent at the time of her death. She left estate to the value of about £50,000. After Mrs Forbes' death there were found in her desk several envelopes addressed to Miss Smith, the daughter of a cousin of the deceased. Inside the envelopes were five informal codicils by Mrs Forbes. They were written on five separate sheets of notepaper, two of them being undated, and three being dated respectively 2nd, 10th, and 11th August 1893. That dated 2nd August was in the following terms:—

“Mrs Forbes would like those different sums divided among her cousins children. Free from legacy duty.

Late John Stuart had two daughters are both dead but left families Mrs Forbes would like £800 divided between their families.

Late Mrs Mary Brodie had five daughters Mrs Cliperton Mrs Wilson Mrs Breeze late Mrs Clapertons family and late Mrs Cuthels family £800 divided among them.

Late Mrs Betsy Cox had one daughter Mrs Hooper £500 to be divided among Mrs Hs four daughters.

Late Mrs Jane Smith Two Sons on daughter £800 divided between them.

Mrs Forbes would like £1000 divided among her late Uncle Alexander M'Farlane Grand children in America.

£800 to be divided between the late Mr John M'Farlane's three daughters Perth.

£800 to be divided between the late Mrs Isabella Fraser's five sons.

£600 to the late Mr Daniel M'Farlane's son and late daughter's daughter.

2d August 1893.

Mary Anne Forb.”

This document was not in the handwriting of Mrs Forbes, being in that of Miss Smith, but was signed by Mrs Forbes.

Mrs Fraser, one of the legatees, a beneficiary both under the third purpose of the trust and the informal codicil, predeceased the testatrix, leaving five sons.

An action was raised by one of these sons against Mrs Forbes' trustees concluding for declarator that the writing of 2nd August was “a valid testamentary writing,” and that the defenders were bound to give effect to its provisions, and that the legacies left therein “are in addition to and not in substitution for” the legacies under the trust-disposition,

The pursuer, who had been paid his share of the legacy to Mrs Fraser under the disposition, asked decree for a fifth part of the legacy bequeathed to her in the codicil.

The defenders pleaded that on a sound construction of Mrs Forbes' testamentary writings, only one legacy of £500 was given to the five sons of Mrs Fraser.

The Lord Ordinary ( Stormonth-Darling) on 21st January 1898 granted decree in terms of the conclusions of the summons.

Opinion.—“There are two questions in this case—(1) whether a paper dated 2nd August 1893 is a valid testamentary writing of the late Mrs Forbes; and (2) whether a legacy left under that writing to the pursuer is due to him as well as a legacy of similar amount which was left by the lady's formal will, and which he has received.

On the first question it is admitted that the codicil is not a formal writing—that is to say, it was written by Miss Smith, a niece of the testatrix, and was signed by the testatrix, but not tested. That difficulty,

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however, is entirely got over by the fifth purpose of her settlement, which provides that her trustees were to pay any legacies and to carry out any instructions she might give by any writing under her hand clearly expressive of her wishes, although the same might not be formal. Now, it appears that the lady left several writings of this informal kind to which the trustees have quite properly given effect, and it also appears that they have given effect to one of the legacies provided by this very writing of 2nd August—namely, a legacy of £600 to the late Mr Daniel Macfarlane's son and granddaughter. No doubt they have recognised it only as in substitution of a legacy of £500 left by the formal will, but still they have recognised it as expressive of the enixa voluntas.

That being so, it is impossible for the trustees to maintain that this is not a valid testamentary writing of the deceased, and they do not carry their contention so far as that. Their contention is, that although a testamentary writing in part, it is, as regards the remainder, a mere direction to the trustees with reference to legacies already given. Now, the words of this codicil which affect this particular pursuer are to be found at the end of it—£800 to be divided between the late Mrs Isabella Fraser's five sons.’ He is one of these sons, and under these words undoubtedly he is entitled to his share of £800. The legacy, in other words, is conveyed in apt terms. But then when you turn to the formal settlement of Mrs Forbes you find that she left ‘to my cousin Mrs Isabella Fraser of Edinburgh the sum of £800 sterling, whom failing to her children, to be divided equally between them.’ So that there are in these two separate writings two bequests giving exactly the same amount, in which the pursuer has a share; and the question is, whether he is to get both or only one. Now, the rule in regard to this matter is laid down down by the late Lord President in the case of The Royal Infirmary of Edinburgh v. Muir's Trustees, 9 R. 352. His Lordship says—‘Where the same amount is bequeathed in two distinct testamentary papers, both equally formal, then both legacies are payable unless it can be shown from the settlement of the deceased, or by other competent evidence, that his intention was to give one legacy only.’ The words in that sentence, ‘both equally formal,’ do not apply to the present case, but they do not affect the decision of it, for the reason I have stated, that the second codicil, although not as formal as the first, must receive exactly the same testamentary effect, owing to the declaration in the principal settlement. I take these two documents, therefore, as having equal testamentary effect; and the question then arises whether the defenders (because the onns is on them) have succeeded in showing, either from the settlement taken as a whole, or by other competent evidence, that Mrs Forbes' intention was to leave one legacy only. It is not said that there is any evidence outside the will which can possibly affect the question. There is nothing, for instance, connected with the state of Mrs Forbes' affairs which would make it at all improbable that she did mean to give two legacies instead of one, and accordingly the inquiry must be confined to the two testamentary writings themselves.

It is easy to speculate upon a subject of this kind. If one were free to speculate, I do not know that the probabilities might not be said to be as much with the defenders as with the pursuer—perhaps more so. But then I am not free to speculate. The rule is that I must give effect to both legacies unless I find something in the writings themselves to displace the natural effect of the words used. The natural effect of the words used undoubtedly would give two legacies, and I can find nothing either in the will or in the codicil to displace that conclusion. It is suggested that the codicil, although testamentary as regards its last limb or member, is not testamentary as regards all the rest. But then in that case why did the testatrix repeat all the sums of money? In that view the codicil was positively and absolutely inoperative, because if all she meant was to point out by name the persons who were to take the legacies provided by the will, she had amply provided by the will that they should take these legacies, and it would have been of course the trustees' duty to find out who the persons so indicated were. Merely to name them as individuals instead of calling them as a class added nothing to the force of the bequest. I do not deny for a moment that she may have intended no more than that, but if so, I should not have expected her to use fresh words of bequest, and what the defenders really have to get over and explain away is why these words are used. It seems to me that none of the explanations which they offer go any length towards explaining that, and accordingly I must give effect to the presumption of law laid down in the case of Muir's Trustees.”

The defenders reclaimed, and argued—(1) This was not a document covered by the adoption clause in the trust-disposition. It was important to notice that it was not found within the will but in a separate place. Nor could it be said to be a document “under my hand”— Dundas v. Lowis, F.C., May 13, 1807; Inglis v. Harper, October 18, 1831, 5 W. & S. 785. (2) Admitting the presumption of law in favour of additional legacies to be that stated by the pursuer, still it was very easy to rebut that presumption by evidence of contrary intention— Horsbrugh v. Horsbrugh, May 4, 1845, 9 D. 329; Baird v. Jaap, July 15, 1856, 18 D. 1246; Free Church Trustees v. Maitland, January 14, 1887, 14 R. 333. Here there was sufficient evidence to show that only one legacy was intended, the informal writing being merely a repetition intended to give information to the trustees. The testatrix in the formal will stated that she considered she had made sufficient provision for her relatives, and wished to consolidate all former deeds, and it was most unlikely that three weeks after executing

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this deed of consolidation she would divest some £6000 from the charitable objects benefited in her settlement to different legacies.

Argued for respondent—(1) This was clearly a document “under the hand” of the testatrix, and was therefore covered by the clause of adoption in the trust-disposition— Wilson's Trustees v. Stirling, December 13, 1861, 24 D. 163; Young's Trustees v. Ross, November 3, 1864, 3 Macph. 10; Crosbie v. Wilson, June 2, 1865, 3 Macph. 870. (2) These legacies were given in two separate valid testamentary documents, and unless it were clearly shown that there was a different intention it must be held that they were cumulative— Royal Infirmary of Edinburgh v. Muir's Trustees, December 16, 1881, 9 R. 352. That view did not really conflict with the decisions in Horsbrugh v. Horsbrugh and The Trustees of the Free Church v. Maitland, where the Court held that there was evidence of a different intention. Here the differences existing in the informal document and the disposition showed that the testatrix was not merely repeating the legacies she had left in the disposition. Nor was there any evidence whatever that she intended them in substitution.

At advising—