Scottish Court of Session Decisions

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Cite as: [1899] SLR 37_78, [1899] ScotLR 37_78

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Friday, November 17. 1899.

37 SLR 78

Duncan

v.

Moir.

Subject_1Proving the Tenor
Subject_2No Written Adminicles
Subject_3Parole Evidence
Subject_4Wilful Destruction.
Facts:

Parole evidence on which, in the absence of written adminicles, the Court held the tenor of an informal holograph testamentary writing to be proved, the casus amissionis having been the wilful destruction of the document by a daughter of the maker of the will, who took no benefit thereunder.

Headnote:

An action of proving the tenor was raised by Mr William Oswald Duncan, curator bonis to Charlotte Jane Calder, an inmate of the Royal Lunatic Asylum, Aberdeen, against Mrs Moir and others, being the next-of-kin and representatives of next-of-kin of the late Mrs Isabella Low or Calder. The summons concluded to have it found and declared “that the last will and testament of the deceased Mrs Isabella Low or Calder, widow of the late Charles Calder, merchant in Aberdeen, was an authentic document subscribed by the said Mrs Isabella Low or Calder, and of the tenor following:—‘I wish, when die, I that my daughter Charlotte Calder get everything belonging to me, with power to her to divide between her sisters Agnes and Janet as she pleases, and I appoint her to be my executrix.— isabella low calder;’ or of such tenor and effect as may be found by our said Lords in the course of the process to follow hereon; and it ought further to
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be found and declared, by decree foresaid, that the said last will and testament was holograph of the said Mrs Isabella Low or Calder; as also, it ought and should be found and declared, by decree of our said Lords, that the decree to be pronounced herein shall be in all respects as valid and effectual a document to the pursuer in all cases, improbation as well as others, as the original deed, if extant, would be, notwithstanding the same has been lost.”

The pursuer averred—“(Cond. 1) Mrs Isabella Low or Calder, widow of the late Charles Calder, merchant in Aberdeen, died on the 20th day of January 1898 in the Nazareth House, a Roman Catholic convent in Aberdeen, leaving a holograph last will and testament executed by her in the terms specified in the summons. This last will and testament was, along with various other papers belonging to her, delivered by the convent authorities on or about 24th January 1898 to the late Mr George Low Calder, a son of the deceased, who on the following day sent them to the defender Mrs Agnes Low Calder or Moir, along with a letter in the following terms:—‘25 th January1898–192 Great Western Road.—To Mrs Moir,— I have looked through mother's papers, which I received from the convent yesterday afternoon. I find she has left everything to Charlotte, with power to divide between you and Mrs Williamson as she pleases. If the authorities find out they will take everything, and I am perfectly helpless. 1 am shut out from acting. There is a little money in the bank, and there is something due by the Insurance Company. But they will not recognise me, so you and Janet must do your best to get possession, and you can do as you like with it as far as I am concerned.—Yours, Geo. Low Calder.’

There is also something in the Co-operative Co., but I cannot make it out.

“I send the bag with all the papers per bearer.”

The pursuer further averred that the whole means belonging to Mrs Calder at the time of her death, in addition to her personal effects, consisted of a balance of £5, Os. 5d. in the Aberdeen Savings bank; that “(Cond. 3) Shortly after said 25th January 1898 the defender Mrs Moir and the defender Mrs Williamson attended at the said Aberdeen Savings Bank, and exhibited to Mr Jaffray, the accountant there, the said last will and testament for the purpose of obtaining payment of the said balance of £5, Os. 5d., and this balance was, on 27th January 1898, paid to them on their receipt. The said Charlotte Jane Calder was at that date an inmate of the Royal Lunatic Asylum, Aberdeen, and incapable of acting on her own behalf.”

The pursuer further averred that after he had been appointed curator bonis to Miss Charlotte Calder he had called on Mrs Moir to hand him over Mrs Calder's will, and that “Mrs Moir admits that the said last will and testament once existed and was in her possession, but declares that it has been destroyed. The pursuer avers that the said last will and testament was destroyed by the said Mrs Moir or the said Mrs Williamson, or by both of them, but he is unable to specify more particularly the casus amissionis of the said last will and testament owing to the refusal of the said Mrs Moir and Mrs Williamson to give precise details as to its destruction.”

The pursuer pleaded—“The said last will and testament of the said Mrs Isabella Low or Calder having been destroyed, the pursuer is entitled to have the tenor thereof proved as concluded for.”

No appearance was entered for the defenders.

On 4th July 1899 the Lord Ordinary ( Kincairney) made avizandum with the cause to the First Division.

Judgment:

On 6th July the Court allowed the pursuer a proof before answer as to the tenor of the writ and the casus amissionis.

Mrs Herd, the housekeeper of Mr George Low Calder, deponed—“I saw Mr Calder open the bag and take out the papers in it. He showed me a paper which he said was his mother's will. He handed me this paper, and said that ‘that was my mother's will.’ I took the paper and read it. It was a long narrow strip of paper, something like the shape of a newspaper wrapper, and of a bluish colour. My recollection is very distinct that the terms of the will were to the effect—‘I wish, when I die, that my daughter Charlotte Jane Calder have everything belonging to me.’ It is also said that she wished her other two daughters, who were mentioned by name—Agnes and Janet—to manage for Charlotte; Agnes is Mrs Moir and Janet is Mrs Williamson; but I cannot remember whether or not they were described by their full names; I remember that the will was signed ‘Isabella Low Calder,’ and the will and the signature were in the handwriting of Mrs Calder.”

Mrs Moir deponed—“My mother was living with me for a period of about six months. That would be from about eighteen months to a year before her death. While my mother was so living with me I remember her writing upon a piece of paper, and when she had finished writing on this paper I went to put the paper and her writing materials away. I saw that the paper left everything to my sister Charlotte. My memory is quite distinct that the words were—‘I leave all my money and Cop to my daughter Charlotte.’ By this she meant, so far as the word ‘Cop’ is concerned, shares in the Northern Co-Operative Company, Aberdeen. I think it went on to say that Charlotte might give anything she chose to me or Mrs Williamson.”

Mrs Moir further deponed that when her mother was dying she saw this paper among her papers, and that she afterwards received it from her brother, George Low Calder, along with the letter from him quoted above, that she handed the paper to her sister Mrs Williamson, and had not seen it since.

Mrs Williamson deponed—“After my mother's death I remember Mrs Moir bringing to my house a bag containing papers belonging to my mother. Mrs Moir

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opened the bag and took out some papers. I recollect my sister showing me a letter which she had received from my brother George along with the bag of papers. As far as I recollect, George said in the letter that I was to have half of my mother's estate, which was to be divided between me and Mrs Moir. [Shown No. 1]—I cannot read the letter as I am too shortsighted, but I recollect parts of it. No. 1 being read to me, I depone that I think that must be the letter; that was my recollection of what was in it. I remember that when the bag was opened my sister said something about my mother's will, and about the ‘Cop.’ She did so with reference to one of the papers taken from that bag. I took sufficient notice of the piece of paper to be able to identify it when I saw it again. It was a longish piece of paper. Mrs Moir left the papers with me, including this paper. … When my sister left the papers, including the will, in my house after mother's death, I took them up off the table where she left them and put them into a drawer. About a month or six weeks afterwards I was preparing my house for lodgers, and I emptied the drawer in which I had put the papers. Among the papers in this drawer I recognised the paper which my sister had showed me when she spoke of my mother's will, and I saw that it was signed by my mother, but I did not look at it particularly. I crumpled it up along with the other papers and took it away and burned it.”

Mr Jaffrey, actuary, Aberdeen Savings Bank, deponed that Mrs Moir and Mrs Williamson came to the bank to draw out their mother's money, and showed to him her will; that “The document was of an informal nature, and was not folded after the ordinary legal fashion. My impression is that it was a holograph will signed by Mrs Calder, and that its terms coincided with the statement of George Low Calder in the second paragraph of letter No. 1— that is to say, that it left everything to Charlotte Calder. I am satisfied that it bore out everything in the said letter.”

There was, however, a conflict of evidence on this point, Mrs Moir denying that the will had ever been shown to Mr Jaffrey, while Mrs Williamson stated that she had no recollection of it.

Argued for the pursuer— Admittedly there were no adminicles, and as a rule adminicles were considered necessary, but in cases such as this where the will was informal and it was unlikely that a draft existed, and further, where the casus amissionis was the wilful destruction of the document by an interested party, the Court had held that the terms of the deed might be sufficiently instructed by parole evidence— Leckie v. Leckie, July 12, 1884, 11 R. 1088; Lillies v. Lillie, December 4, 1832, 11S. 160; Sugden v. Lord St Leonards, March 13 [1876], L.R. 1 Prob. Div. 154. In the case of Rannie v. Ogg, June 12, 1891, 18 R. 903, opinions were expressed apparently adverse to the pursuer's view, but that was the case of a deed granted by the defender, and destroyed by him undelivered. Moreover, the case of Leckie v. Leckie, supra, was not cited to the Court. The pursuer had proved the essential part of the will, viz., that everything had been left to Charlotte, and it was unnecessary for him to prove all the words.

The Court instructed the pursuer to amend his summons by deleting the words “and I appoint her to be my executrix,” and thereafter pronounced the following interlocutor:—

“Open up the record: Allow the summons to be amended by deleting the words ‘and I appoint her to be my executrix,’ occurring on the 8th and 9th lines of page 4 thereof; and the same having been done of new close the record, and find and declare in terms of the conclusion of the summons as amended, and decern.”

Counsel:

Counsel for Petitioner— Dove Wilson. Agent— Arthur H. Paterson, W.S.
1899