Scottish Court of Session Decisions

By section 39 of the Conveyancing (Scotland) Act 1874 it is enacted, “No deed-instrument, or writing subscribed by the granter 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 granter 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 proceeding 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 granter or maker and witnesses.”

Robert Inglis, feuar, Greenock, died at Greenock on 29th September 1901. He left no issue, and was survived by his widow Mrs Elizabeth Bain Swan or Inglis, and by two brothers, George Inglis senior, Exeter, and Thomas Stewart Inglis senior, commercial traveller, London, and by the following children of his deceased brother James Inglis, namely, George Inglis junior, locomotive painter, Glasgow, Peter Inglis, house painter, Glasgow, and Mary Ann Inglis. He was predeceased by his father and mother.

After the death of Robert Inglis his repositories were searched, and there was found in an iron safe in his bedroom (1) a pocket-book containing securities and a copy of the deceased's antenuptial marriage-contract; (2) an envelope containing the titles of his house; (3) an envelope containing Turkish bonds; (4) an envelope containing Singer's debentures; (5) an envelope containing a document in the form of a trust-disposition and settlement.

The document, No. 5 of those mentioned, was written upon two separate sheets of paper and extended to eight pages. It was not written by the testator, and bore a signature on the last page only. At the foot of each page was the proper catchword connecting it with the next page. On the backing of the deed appeared the letters “Dft.” By this deed the testator assigned and disponed his whole estate, heritable and moveable, to his wife Mrs Elizabeth Bain Swan or Inglis, his brother Thomas

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Stewart Inglis, and Frederick L. Wrede, shipbroker, Greenock, as trustees for the purposes therein mentioned. The trust purposes were as follows—He directed his trustees to pay (1) his debts, funeral expenses, and the expenses of the trust; (2) to implement the obligations in the antenuptial contract between himself and his wife; (3) to increase the annuity payable to his wife under the marriage-contract from £200 to £300, subject to restriction to £100 in the event of her second marriage; (4) in the event of his brother Thomas Stewart Inglis surviving him, he provided that the residue of the estate was to vest in him, and to be paid to him or his heirs or assignees, subject to sufficient provision being made for securing the annuity to the testator's wife, the balance being paid to him and his foresaids on her death; (5) in the event of his brother Thomas Stewart Inglis predeceasing him, he directed that the residue, subject as aforesaid, was to be held for behoof of his children, the income to be applied to their education and maintenance till the youngest attained twenty-one years of age, when the fee and any accumulations of income were to vest and be divided among them equally, the issue of predeceasers taking their parent's share.

The deed ended thus:—“And I consent to registration hereof for preservation.—In witness whereof, Robert Inglis. Jno. Muir Maitland, witness. James Galbraith, witness.”

Three or four clerical corrections had been made in the body of the deed by the writer by means of interlineations and scoring out with a pen.

In addition to the papers in the safe there was found in the pocket of the deceased Robert Inglis a paper with the following informal jottings relating to the disposal of his estate:—

“Trustee.

Thomas Stewart Inglis, Jnr.

7 Oppidans Road, South Hampstead, the residue. London.

£10,000.

Leo Stewart Inglis, Sergant Trumpter, Canadian Dragons, Cavalry Barracks, Winnepeg, presentley in South Africa.

My Neice Cassy Fincher Mrs, 37 Canterbury Road, West Croyden, £500.

My Neice Beatrice Binns Mrs, Carndonach, Ireland, £500.

My Neice Loo Colquhoun Mrs, Drumchapel, near Glasgow, £500.

Mrs Robert Inglis in addition to what is secured to her by antenuptial contract £125 per annum.

the rest of my estate to be divided in equal proportions.”

The estate of the deceased amounted to about £35,000.

No other testamentary writings were found in the depositories of the deceased.

On 15th October 1901 Mrs Elizabeth Bain Swan or Inglis, Thomas Stewart Inglis senior, and Frederick Lear Wrede, the trustees nominated in the said trust-disposition and settlement, presented a petition to the Court in terms of section 39 of the Conveyancing (Scotland) Act 1874, praying the Court “to find and declare that the trust-disposition and settlement above mentioned was subscribed by the said deceased Robert Inglis, as the maker thereof, and by the said John Muir Maitland and James Galbraith, as witnesses attesting the subscription of the said Robert Inglis, between the end of January and the beginning of April 1898.”

The petitioners averred “that the said trust-disposition and settlement was the completion by the deceased of a draft prepared on his instructions by Messrs R. & S. Neill, Clerk, & Orkney, writers, Greenock, and was sent by them to him on 4th November 1893; that the said draft was never returned to them, but was subscribed by the deceased between the end of January and the beginning of April 1898, the witnesses to the subscription (the said John Muir Maitland and James Galbraith) being at the time clerks in the West End Branch of the Royal Bank of Scotland at Greenock. … That the deceased intended the said instrument to have testamentary effect as appears from the following facts:—(1) He retained the draft from 1893 till he executed it (in the period between 1898 and 1900); (2) he executed it; (3) he deposited it among his formal papers; (4) he left no other testamentary writing; (5) subsequent to April 1899 he indicated to his wife, the petitioner Mrs Elizabeth Bain Swan or Inglis, that he had made a will in terms of which she and the petitioners Thomas Stewart Inglis senior, and Frederick Lear Wrede were nominated trustees, and again in November 1900 and July 1901 he stated to the petitioner Thomas Stewart Inglis senior that he had left his whole estate to him with the exception of provisions in favour of his widow.”

Answers to the petition were lodged by George Inglis junior, Peter Inglis, and Mary Ann Inglis. The respondents explained—“(1) That the alleged trust-disposition and settlement bears to be a draft and is signed on one page only; (2) that the sheets on which it is written are and always have been separate, and are not interleaved; (3) that it was not written by the testator; (4) that there is no testing clause or date of subscription; (5) that there are no designations or addresses of witnesses appended; (6) that it contains many erasures, alterations, and interlineations in essentialibus and otherwise; and (7) that there are no means of discovering when, where, and by whom such alterations were made. These and other objections render the alleged deed entirely null, and the respondents object (1) that no trust-disposition and settlement has been executed by the deceased; (2) that the writing produced has no force or effect in law, and is not capable of being set up under section 39 of the Conveyancing Act 1874; and (3) that if the document ever had any efficacy it was destroyed by the deceased having changed his intentions as to the disposal of his estate after he had appended his signature thereto, and that the alterations upon the document are entirely unauthenticated.”

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Proof was allowed and led, which established the facts above narrated and bore out the averments of the petitioners with regard to the framing and signing of the deed. The law-agent who had received the instructions of the deceased and had drafted the deed, and also the clerk who had written out the draft and made the clerical alterations, were examined as witnesses. Maitland and Galbraith, the two witnesses to the subscription, deponed that although they had no recollection of signing the particular document, they had no doubt that the signatures were their own; that Robert Inglis occasionally came to the bank and asked them to be witnesses to his signature to documents, and that the deed must have been signed between 24th January 1898 and 19th May 1900, during which period Galbraith was at the Greenock West End Branch of the Royal Bank.

Argued for the petitioners—This was a typical case for the application of the statute. The informality referred to in the Act was just such an informality as had occurred here. A will signed only on the last page had been held valid— M'Laren v. Menzies, July 20, 1876, 3 R. 1151, 13 S.L.R. 703, which settled the practice on the point— Brown, December 22, 1883, 11 R. 400 (opinion of Lord President Inglis, 401), 21 S.L.R. 267. A deed without any testing clause had also been held to be valid— Addison, February 23, 1875, 2 R. 457, 12 S.L.R. 334. The mere fact of the informality of the deed, or that some non—essential alterations had been made upon it, or that it was labelled “Dft.,” did not prevent it from being a valid testamentary writing— Speirs v. Home Speirs, July 19, 1879, 6 R. 1359, 16 S.L.R. 784; Forsyth's Trustees v. Forsyth, March 13, 1872, 10 Macph. 616, opinion of Lord Kinloch 619, 9 S.L, R. 367; Whyte v. Hamilton, July 13, 1881, 8 R. 940, 18 S.L.R. 676, aff. June 15, 1882, 9 R. (H.L.) 53, 19 S.L.R. 688.

Argued for the respondents—The petitioners had failed to discharge the burden of proof imposed by the statute. The document was a mere rough draft as in the case of Forsyth's Trustees, supra, inoperative as a testamentary writing. This case was distinguished from M'Laren, supra, because in the latter case the deed was stitched together, the ends of the thread being sealed by the testatrix, and the deed itself was sealed, signed, and acknowledged with all due solemnity. No account should be taken of any parole evidence of the testator's intention— Johanson v. Johanson's Trustees, December 9, 1898, 1 F. 245 (opinion of Lord Travner, 250), 36 S.L.R. 169.