Scottish Court of Session Decisions

This was an action of multiplepoinding raised by William Rose Gordon, Durban, Natal, South Africa, executor-dative qua next-of-kin of Georgina Gordon, to determine the manner in which her estate fell to be divided, the parties entitled to share therein, and the meaning and effect of two testamentary writings left by her. The defenders called were Mrs Mary Jane Gordon Macqueen and others, being so far as could be ascertained the whole persons interested or who might claim to be interested in the succession of the testator.

Miss Georgina Gordon died in 1904 at the age of eighty-three, leaving personal estate in the United Kingdom to the amount of £7977 8s. 5d., the bulk of which was invested in heritable securities in Scotland and in Belgian Government 3 per cent. bonds in England. She was prede

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ceased by all her brothers and sisters.

She left a testamentary disposition, dated 4th March 1852, by which she conveyed to her trustees her whole estate for the purposes, inter alia, that payment should be made of her debts, &c., and of an annuity to a sister, Madelina M'Gusty, of thirty pounds a year: “( Fourthly) that the said trustees or trustee shall hold and retain in their or his hands, and lay out in security, real or personal, … the sum of five hundred pounds sterling for behoof of my sister Alicia Bridges in liferent … and for behoof of the issue of her body, whom failing my brother Alexander Gordon and his heirs and assignees in fee; … and ( lastly) that the said trustees or trustee shall account for, pay over, assign, and convey the whole residue and remainder of my property, including all lapsed legacies, to my brother Alexander Gordon, presently residing at Port Natal, and him I appoint my general disponee and residuary legatee to all my property not otherwise disposed of; … and I consent to the registration hereof in the Books of Council and Session in Scotland or others competent, therein to remain for preservation….”

There was no mention in the settlement of “Belgian Funds.”

Both of the trustees and executors named in the above testamentary disposition having predeceased Miss Gordon, the pursuer, the said William Rose Gordon, was ordained executor-dative qua one of the next-of-kin of the late Miss Gordon.

Alexander Sutherland, W.S., Edinburgh (who was named as a trustee in the above testamentary disposition, and by whom the deed was prepared), acted as Miss Gordon's law agent. Mr Harry Cheyne, W.S., Edinburgh, acted in that capacity after Mr Sutherland's death in 1869. When Mr cheyne took over from Mr Sutherland's executor the securities and papers held for Miss Gordon he received the above-mentioned testamentary disposition, and this deed remained in his possession up to the time of Miss Gordon's death. The only writing of a testamentary nature found among her papers was a document apparently holograph and evidently written at two different dates, the ink of parts being of different shades. It was in the following terms [what here appears in small type being in the original merely in a different shade of black ink], viz.—“Having made two wills when suffering from decay of memory, both of which are registered in the Books of Session in Edinburgh,—I do hereby cancel them, and in place of which I make the following statement of my wishes—I retain in my own the invested wheresoever such as I name my money in the Belgian Funds, and I require and wheresoever invested — I wish request the Bankers in Brussels and to rember my friends but have little to do it London who now have it to continue to with I commend myself to the care of the take the charge of it for me. My Death Bed, Almighty.

Sick Bed, Household and Church Debts, are to be liquidated, and my affairs are to be wound up and brought to a conclusion by my legal Adviser at the period of my decease.

“ Georgina Gordon,

Logie Cottage,

3rd April 1879.

29th March 1865.”

[ The words in italics were scored through.] Though in the holograph writing above quoted reference is made to two “wills” stated to be “registered in the Books of Session in Edinburgh,” so far as was known the only settlement or will executed by Miss Gordon previous to the said holograph writing was the testamentary disposition of 1852, and neither that nor any other will or settlement of the testator had been registered in the Books of Council and Session.

Claims were lodged on behalf of (1) Mrs Mary Jane Gordon or Macqueen and others, the five children of Alexander Gordon (who predeceased the testator), and (2) Mrs Mary Bridges or Sherlock and William Francis Bridges, two of the four children of Mrs Alicia Gordon or Bridges (who predeceased the testator), and (3) Harry Lyons Dümler, guardian of Georgina Bridges and John Gordon Bridges, being the other two children of Mrs Alicia Gordon or Bridges.

The claim of the first mentioned claimants was “to be ranked and preferred to the whole of the fund in medio under deduction of the legacy of £500 payable to the issue of the deceased Mrs Alicia Gordon or Bridges.”

They, inter alia, pleaded—“(1) In virtue of the provisions of the said testamentary disposition of the deceased Miss Georgina Gordon the claimants are entitled to be ranked and preferred in terms of their claim. (2) The said testamentary disposition was not revoked by the alleged holograph document referred to; et separatim, the said document is of no effect in respect that it is vitiated in essentialibus.”

The claim of the second mentioned claimants was “to be ranked and preferred on the fund in medio, each to the extent of one-ninth thereof; or, alternatively, each to the extent of one-fourth of the said sum of £500.”

They pleaded—“(1) On a sound construction of the testamentary writings condescended on the said Georgina Gordon died intestate quoad the fee of her estate. (2) These claimants being (first) two of the next-of-kin of the said Georgina Gordon, and (second) two of the four children of the said Mrs Alicia Macdonald Gordon or Bridges, are entitled to be ranked and preferred in one or other of the alternatives of their claim.”

The claim and pleadings of the third mentioned claimants was similar to that of those second mentioned.

On 1st March 1906 the Lord Ordinary ( Salvesen) pronounced this interlocutor—“Finds that on a sound construction of the testamentary writings condescended on the deceased Georgina Gordon died intestate quoad the fee of her estate, and, with this finding, appoints the cause to be enrolled for further procedure: Finds all parties

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interested entitled to their expenses out of the trust estate, and grants leave to reclaim.”

Opinion.—“This action relates to the distribution of the estate of Miss Georgina Gordon, who died in December 1904 at the advanced age of 83. In the possession of her law-agents, Messrs Mackenzie & Kermack, there was at the time of her death a testamentary disposition which had been executed so far back as the year 1852. Under this deed she gave, inter alia, a legacy of £500 to her sister Alicia Bridges in liferent and her issue in fee, and conveyed the whole residue of her estate to her brother Alexander Gordon and his issue, if he should predecease leaving issue. The claimants Mrs Macqueen and others are the whole children of Alexander Gordon, who predeceased the testatrix, and who accordingly claim the estate, subject only to the payment of the legacy of £500. Their claim is contested by four of the issue of Miss Alicia Bridges, who maintain that the disposition of 1852 was revoked by a subsequent holograph document which was found in the lady's own repositories.

That document is quoted at length in art. 2 of the condescendence annexed to the summons. In its original form it appears to have been signed on 29th March 1865, but it was altered in the handwriting of the testatrix herself apparently on 3rd April 1879. If it stood alone it would undoubtedly have the effect of leaving the estate to be distributed according to law, because beyond a direction for payment of debts it contains no provisions with regard to the disposal of the testator's means. So far there is nothing inconsistent with the provisions contained in the earlier disposition, and accordingly it was argued on behalf of the issue of Alexander Gordon that the disposition by which they are made residuary legatees must receive effect. The Bridges family, on the other hand, maintain that the prior disposition was either expressly or impliedly revoked by the subsequent testamentary writing.

This holograph writing starts with the following clause—‘Having made two wills, when suffering from decay of memory, both of which are registered in the Books of Session in Edinburgh, I do hereby cancel them.’ The effect of this clause might have been more easily determined if anything had been known of the history of the lady herself prior to 1865, or of any testamentary dispositions which she had executed. Neither set of claimants, however, makes any averments on the subject, and it was frankly stated at the bar that parties despaired of obtaining any information which would tend to elucidate the meaning of the document. Only one will (that of 1852) is known to have been executed prior to 1865, and it was, of course, not registered in the Books of Session, although it contained a consent to registration for preservation. It is therefore not impossible that two wills may have been executed subsequent to 1852 which answered the description of having been made when the testatrix was suffering from decay of memory, although all trace of them has been lost. The onus of showing that a particular will is revoked by a clause of this kind lies, I think, upon those who maintain the revocation, and accordingly if the clause above quoted had stood alone I do not think that I could have held that the will of 1852 was sufficiently identified as one of the two wills expressly revoked.

The holograph document, however, proceeds (I read only from the later edition) ‘and in place of which I make the following statement of my wishes—I retain in my own name the money such as I require and wheresoever invested; I wish to rember my friends, but have little to do it with. I commend myself to the care of the Almighty. My deathbed, sick-bed, household, and church debts are to be liquidated, and my affairs are to be wound up and brought to a conclusion by my legal adviser at the period of my decease.’ It is not easy to understand why the testatrix took the trouble to express these wishes, seeing that no former wills could have affected her right to her own money during her lifetime and that her personal estate, if what she ultimately left at her death is any indication of what she possessed in 1879, was far from inconsiderable. It is, however, difficult to resist the inference that she executed the holograph will under the impression that there was no previous settlement of her testamentary wishes which still remained operative, and I think it impossible to hold that she had in view the prior disposition of 1852, and believed that it would regulate the succession to her estate. By the 1852 disposition provision was already made for payment of her debts and for the distribution of her estate, and at the time that the last clause of the holograph writing—as we now find it—was framed, her legal adviser, Mr Alexander Sutherland, who had drawn the disposition of 1852, was still alive. In my opinion, therefore, it must be held either that the disposition of 1852 was one of the two wills which she expressly revoked, or that she had forgotten its existence and made a new will, in which she deliberately stated her intention of making no provision for the disposal of her free estate after her death, because rightly or wrongly she considered that it was of such small amount as not to require to be specially bequeathed. In construing a document of this peculiar kind without any extraneous aid one is of course in the region of pure conjecture, but I think it probable that the testatrix had before her at the time a copy of the 1852 disposition, and imagined that the conveyance to trustees operated in some way to take her money out of her own name, just as she seems to have assumed that the consent to registration had been acted on, and that the will itself was already registered in the Books of Council and Session.

If I am right the result is that Miss Gordon's estate falls to be disposed of according to law. It is satisfactory to

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know that my decision does not involve that the children of Alexander Gordon, whom she nominated as her residuary legatees in the 1852 will, will be entirely disappointed, but that the estate will be substantially divided between them and the issue of Alicia Bridges—the only other legatees of those mentioned in that will who have survived her.”

The claimants, the children of Alexander Gordon, reclaimed, and argued—The disposition of 1852 was not expressly revolted, there being nothing to show that it was one of the two wills expressly cancelled by the holograph writing. On the contrary, everything tended to show that it was not. It was formal, rational, and evinced no sign of decay of memory, and was moreover, made at an age, viz., thirty-one, when such a disease was improbable. Nor was there any implied revocation, for, in fact, the holograph writing contained no testamentary disposition whatsoever. The onus of proving the revocation of a prior by a subsequent testamentary instrument was on those who asserted the revocation— Stoddart v. Grant and Others, February 27, 1849, 11 D. 860, and June 28, 1852, 1 Macq. 163. That onus had not been discharged.

Argued for the claimants, the children of Alicia Gordon or Bridges—A revocation was perfectly good although what followed the revocation might not be capable of bearing a rational construction. “In place thereof” indicated the testator's belief that there was nothing to prevent a new will—an entirely new arrangement of her affairs — being made, and that the two wills recalled were all the existing wills. The fact that the will had not actually been registered was immaterial, because the testator evidently imagined that the power to register in the Books of Council and Session had been exercised, and in any case falsa demonstratio non nocet— Bankes v. Bankes' Trustees, July 6, 1882, 9 R. 1046, 19 S.L.R. 785. The latter part of the holograph writing was an appointment of an executor, for the words “at the period of my death” referred to the time of winding up of her estate, and not to the time of ascertainment of “my legal adviser.” There was in the 1852 disposition a liferent requiring the protection of trustees, and this showed that the intention was not merely to substitute an executor for trustees, but to cancel the deed of 1852.