Scottish Court of Session Decisions

On 11th July 1912 a Special Case was presented to the Court by the Rev. William Dunnett and others, the trustees of the late Mrs Jessie Finnie or Mitchell ( first parties), and Mrs Marion Mitchell or Pride, wife of William Pride, engineer, Lincoln, and William Pride for his own interest ( second parties).

The Special Case stated—“1. Mrs Jessie Finnie or Mitchell, widow of Mr William Mitchell, tobacco manufacturer, Kilmarnock, who resided at Ann Bank, Kilmarnock, died there on 6th January 1911. No children were born of the marriage. Her husband, the said William Mitchell, had been previously married, and he left one daughter, Mrs Marion Mitchell or Pride, one of the parties of the second part.

2. On four occasions between the years 1895 and 1898 the said Mrs Mitchell advanced sums on loan to her stepdaughter, the said

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Mrs Pride, and her husband William Pride, engineer, Lincoln, receiving in return on each occasion an I O U signed by the said Mr and Mrs Pride. The dates and amounts of the said I O U s are as set forth below, videlicet:—

1. 4th November 1895	£100
2. 22nd October 1896	100
3. 19th March 1897	100
4. 23rd April 1898	60
	£360

Said loans have not been repaid. Repayment thereof was never asked by Mrs Mitchell, nor was any interest in respect thereof asked for or paid.”

[Statement 3 of the Special Case mentioned that Mrs Mitchell had left a will under which Mrs and Mr Pride were beneficiaries. The will contained no reference to the loans.]

“6. After the death of the said Mrs Mitchell there were found in a cash box in the safe in her dwelling-house, among other papers relating to her investments, the I O U s above mentioned and certain other writings hereinafter described. … Her trust-disposition and settlement was in the custody of her law agents at her death. The I O Us were found pinned together, with (at the back) a letter dated 19th March 1897 (being the date of the I O U third above mentioned), addressed by the said William Pride to Mr Matthew Arbuckle, … acknowledging a letter from him with a cheque for £100 from Mrs Mitchell. The said I O U s and letter were folded so that the back of the letter was outermost, and on it was written in ink, in the handwriting of the said Mrs Mitchell, the words—

‘I don't want this money paid up.

J. Mitchell.’

The I O Us and letter pinned together, folded and endorsed as above mentioned, were contained in an envelope addressed by the said Mrs Pride to the said Mrs Mitchell, bearing the Lincoln postmark of 24th April 1898 (being a day later than the date of the fourth and last I O U).

7. The other papers relating to the matter found in said cash box, but unattached and unenclosed, were (1) an empty envelope bearing a Lincoln postmark of date October 23, 1896 (being a day later than the date of the second I O U), addressed to the testatrix's brother-in-law the said Mr Matthew Arbuckle, but with his name and part of his address scored out, and the words written thereon, partly in ink and partly in pencil, in the handwriting of the said testatrix—‘Mrs Mitchell from Mrs and Mr Pride.’ On the back of said envelope, written in pencil in the handwriting of the testatrix, were the words—‘I don't want this money paid up. J. M.’; (2) jotting or memo of the loans of 1895, 1896, and 1897, the jotting regarding each loan being initialled by the testatrix, and the whole being in her handwriting; and (3) a letter from the said Mrs Pride to the testatrix acknowledging receipt of the cheque for the fourth and last loan of 1898, and returning the I O U of that date.

8. There is no extrinsic evidence as to the time when or the circumstances under which the foresaid jottings were made by the deceased Mrs Mitchell. …

10. The first parties maintain that said writings are not testamentary in their character, and that they do not, in the circumstances above set forth, constitute a valid bequest or bequests by the said Mrs Mitchell in favour of the second parties of any of the sums contained in the four I O U s in question; alternatively, they maintain that in any event said writings can only be held as constituting a valid bequest (1) quoad the sum contained in the I O U dated 19th March 1897; or (2) quoad the sums obtained in the IOUs dated respectively 23rd October 1896 and 19th March 1897; or (3) quoad the sums contained in the I O U s dated respectively 4th November 1895, 23rd October 1896, and 19th March 1897.

The second parties, on the other hand, maintain that the said holograph writings constitute a valid bequest to the second parties of the sums contained in all four I O U s, or otherwise a cancellation of the debts thereby constituted, which is binding on the first parties.” …

The question of law was—“Do the said holograph writings … constitute a valid testamentary bequest or bequests in favour of the second parties of the sums contained in, or a cancellation of the debts constituted by, the said IOUs dated ( a) 4th November 1895, ( b) 22nd October 1896, ( c) 19th March 1897, and ( d) 23rd April 1898, or any of them?”

Argued for the second parties—The holograph writing was a valid testamentary bequest and legatum liberationis of the loans vouched by the IOUs. No special words of gift were necessary— Colvin v. Hutchison, May 20, 1885, 12 R. 947, 22 S.L.R. 632, and the words here were appropriate to a legatum liberationis. The writing was intended to have a testamentary effect, for it was addressed to the person who would find it on the deceased's death. In Russell's Trustees v. Henderson, December 11, 1883, 11 R. 283, 21 S.L.R. 204, a writing was held to be testamentary, although the signature was on a separate piece of paper, and here the IOUs being wrapped up in the letter were sufficiently identified with the writing on it. If it were said that the will by making no reference to the loans revoked the bequest, the onus of proving it to be revoked was on those who asserted the revocation— Stoddart v. Grant and Others, June 28, 1852, 1 Macq. 163.

Argued for the first parties—The writing was not testamentary. It was capable of the interpretation that the deceased was merely expressing an intention to cancel the debt without actually so doing.

At advising—