Scottish Court of Session Decisions

A Special Case was presented for the opinion and judgment of the Court by David M. M. Milligan, advocate, Aberdeen, and another, the trustees acting under the trust-disposition and settlement, dated 13th January 1904, of the deceased Mrs Eliza Farquharson Milne or Hannay, Southville, Dollar, who died on 26th October 1904, first parties; Mrs Laura Esther Parker or Keith, Christchurch, New Zealand, widow of William Keith, formerly of Ceylon, and his children, second parties; Miss Jemima Graham, 15 Alva Street, Edinburgh, the executrix acting under the settlement of Miss Elizabeth Harriet Caroline Hannay, the testatrix' only daughter, who died unmarried on 12th January 1911, third party; Peter Hannay, the only son of the testatrix, fourth party; John H.P. Hannay, Bayup Brook, Bridgtown, West Australia, and others, the whole children of Peter Hannay, fifth parties.

By the fourth purpose of her settlement the testatrix provided as follows—“( Fourth) I direct my trustees, as soon as convenient after my death, to set aside and invest in their own names the sum of five thousand pounds sterling, and to pay to my daughter, the said Elizabeth Harriet Caroline Hannay, during her lifetime, the free annual income thereof for her .alimentary support, declaring, however, that my daughter shall have no vested right in the fee of said five thousand pounds … and in the event of my daughter dying unmarried … then I direct my trustees on my daughter's death, and out of said sum of five thousand pounds, to pay a sum of five hundred pounds thereof, as representing the amount of a legacy which I received from my great-grandfather, the Reverend Robert Farquharson of Allargue, to my granddaughter Millicent Isabel Bruce Hannay absolutely, and to pay a further sum of one thousand five hundred pounds thereof, in the manner to be afterwards directed by me in any writing or writings to be hereafter executed by me, and that too, however informal said writings may be, so long as they are admittedly under my hand, and the remainder of said sum of five thousand pounds, videlicet, three thousand pounds, I direct my trustees to pay to the children of my son Peter equally among them if on my daughter's death they have attained the age of twenty-one years complete, or if females have attained that age or been married, and if not, then on their respectively attaining that age, or if females, being married before they attain that age.”

The settlement further contained the following clause—“And I revoke all previous testamentary writings.”

Mrs Hannay did not leave any writing dated after the date of execution of her settlement dealing with the above-mentioned sum of £1500. She left, however, a holograph writing in pencil, dated 21st December 1903, in the following terms—“In the event of my daughter's leaving no

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descendant, £1500 (fifteen hundred pounds sterling) I bequeath to the family of the late William Keith of Ceylon, £200 of which would be for his widow Mrs Laura Keith.—B. F. Hannay, Southville, Dollar, Scotland, December 21st, 1903.”

The Case stated—“A draft of Mrs Hannay's trust-disposition and settlement was prepared by her law agents in July 1903, and was then sent to her for consideration and approval. After correspondence as to its terms, an engrossment of the draft as then adjusted was executed by Mrs Hannay on 16th December 1903, being five days before the date of the last-mentioned holograph writing. In returning the signed engrossment to her agents on 16th December 1903 Mrs Hannay expressed her desire to make certain alterations on the settlement, and requested her agents to prepare a codicil for the purpose of giving effect to these. One of the alterations desired by her was a reservation of right to her to bequeath £1500 out of the sum of £5000 mentioned in the fourth purpose otherwise than to her son or his family. Mrs Hannay's agents advised her that it would be preferable that the settlement should be altered to give effect to her wishes and be re-executed by her. Said advice was given prior to 21st December 1903, but final instructions to the agents for a new settlement embodying said alterations were not given till 29th December 1903, and the settlement as so altered was executed by her on 13th January 1904. The trust-disposition and settlement as executed by Mrs Hannay on 16th December 1903 is not now available for production, having been either destroyed or mislaid, but the agents who prepared it are able to state that it contained a clause of revocation in the same terms as that quoted supra.”

In an appendix annexed to the Case and held as forming part thereof there were printed certain letters passing between Mrs Hannay and her agents, Messrs Davidson & Garden, advocates, Aberdeen, between the dates 4th December 1903 and 14th January 1904. The correspondence so printed contained, inter alia, the following passages:—“ Southville, Dollar, December 16 th, 1903.

Gentlemen—… One point also I should like added to the will, viz., that in the event of my daughter's dying leaving no descendant, I leave £1500, the sum of fifteen hundred pounds, free of legacy duty, otherwise than to my son and his heirs; and I should like these two points clear within the will itself—not simply in a holograph supplement—their omission might be in certain contingencies misleading. I think you could kindly take your own way of making such codicil to the present document, and oblige. Gentlemen, yours faithfully, E. F. Hannay.”

“ Aberdeen, 17 th December 1903.

Dear Mrs Hannay—… With regard to the provision that in the event of the death of your daughter without descendants, a sum of £1500, free of duty, shall be excluded from the sums given to your son, we shall be glad to know the purposes to which the £1500 are to be devoted, in order that we may make the necessary amendment to your will.—Yours faithfully,

Davidson & Garden.” “ Southville, Dollar, December 17 th, 1903.

Gentlemen—… I would beg to suggest that I be allowed to add a holograph page or sheet to the will as it now stands, in which I could set forth … the statement of probability, under certain contingencies, of bequeathing £1500 (fifteen hundred pounds) to others than my son's family.…—Yours faithfully,

E. F. Hannay.”

“ Aberdeen, 19 th December 1903.

Dear Mrs Hannay—… The more I consider the three changes which you would like to make in your will, the more I think that the will should be rewritten.… When you have told me how you want the £1500 disposed of, I shall have the will rewritten and returned to you for signature.…—Yours faithfully,

David M. M. Milligan.”

“ Southville, Dollar, December 29 th, 1903.

Gentlemen—… In event of my daughter's leaving no direct heirs, I might not leave the whole of the £5000—five thousand pounds to go to my son or family. I reserve the right of bequest, otherwise, for a portion—and without in the meantime specifying amount or direction.…—Yours faithfully, E. F. Hannay.”

From the correspondence it further appeared that the later settlement differed from the earlier ( a) in extending the gift of a fee of a share of residue to the children of the present marriage of Peter Hannay to his lawful children, and( b) in providing that certain annuities given by the earlier settlement should only be held by the annuitants if they were unmarried and not otherwise provided with “ample means.”

After Mrs Hannay's death there were also discovered in her repositories certain holograph documents. Among these documents were the two following:—“28. 5. 1904—Of funds absolutely mine, I leave the sum of fifty pounds stg., £50 to Eliza Keith, Ceylon, whom failing to her mother Mrs Laura Keith, widow of Mr William Keith—as also £250—the sum of two hundred and fifty pounds to said Mrs Laura Keith. E. F. Hannay.”

“ Southville, Dollar, December 5 th, 1903.

D. M. M. Milligan, Esquire, &c., &c., &c., of Aberdeen.

Dear Sir—… It is late this Saturday, and I do not expect to dispatch this until Monday, but it has come irresistibly on my mind that in the event of my daughter's remaining unmarried, or married leaving no family, I would leave £1500—fifteen hundred pounds—to Mrs Laura Keith's family, Ceylon, i.e., herself, for benefit of her family. You will kindly observe from which part of the funds I am entitled to make this bequest.—Yours faithfully,

E. F. Hannay.

Not sent. I intend adding as a private codicil, to be read after my death.’ E. F. H.”

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The Case further stated—“10. The question has now arisen whether the said holograph writing by Mrs Hannay, dated 21st December 1903, and quoted above, is operative and effectual to dispose of the sum of £1500 mentioned in it as therein specified.… 12. The first, third, fourth, and fifth parties contend (1) that the said holograph writing by Mrs Hannay, dated 21st December 1903, was revoked by her said trust-disposition and settlement, and (2) that it does not constitute an operative direction as to the disposal of the said sum of £1500 in the sense of the fourth purpose thereof. The second parties contend that the said holograph writing, dated 21st December 1903, was not, in the circumstances, revoked by Mrs Hannay's said trust-disposition and settlement, and that it is operative and effectual as a testamentary writing of Mrs Hannay, and that it does constitute a direction to pay the said sum of £1500 in the manner expressed in the said holograph writing, and that in the sense of the fourth purpose of the said trust-disposition and settlement.”

The following question of law was, inter alia, submitted for the opinion and judgment of the Court—“1. Is the holograph writing of the testatrix, dated 21st December 1903, operative and effectual as a part of her final testamentary writings?”

Argued for the second parties—The holograph writing of 21st December 1903 was valid and effectual. (1) The extrinsic evidence tendered could be competently admitted to establish its validity. The object of admitting extrinsic evidence in such cases was to determine what was the actual will of the testator, and the Scottish Courts in admitting such evidence exercised functions similar to those of probate in England and quite distinguishable from those which they exercised in construing the language of the deed. It was clear from the unsent letter of 5th December 1903 that the testatrix intended the writing of 21st December 1903 to receive effect, and the settlement was incomplete without it. The writing in question together with the will constituted a continuous act of testamentary activity on the part of the testatrix. Where a series of documents of a testamentary character had been left by a testator which were capable of being regarded as idem negotium, the Court was entitled to look at the facts surrounding their execution to see whether a revocation of former wills in one of them was to be read literally or in relation to the facts liberally. The authorities established that if the documents could be read as idem negotium they were to be read as if they were one document of even date—Dickson on Evidence, section 1067; Forlong v. Taylor's Executors, April 3, 1838, 3 S. & M'L. 177, per L.C. Cottenham at p. 210; Lowson v. Ford, March 20, 1866, 4 Macph. 631, per Lord Cowan at p. 637, 1 S.L.R. 227; Greenough v. Martin, 1824, 2 Add. Eccl. 239, per Sir John Nicholl at p. 243; Dalglish's Trustees v. Crum, November 25, 1891, 19 R. 170, 29 S. L. R. 149; Tait's Trustees v.Chiene, 1911 S.C. 743, 48 S.L.R. 609; Sprot's Trustee's v. Sprot, 1909 S.C. 272, 46 S.L.R.161; Scott v. Sceales, February 5, 1864, 2 Macph. 613, per L.J. C. Inglis at p. 619; Forsyth's Trustees v. Forsyth, March 13, 1872, 10 Macph. 616, 9 S.L.R. 367; Whyte v. Hamilton, July 13, 1881, 8 R. 940, 18 S.L.R. 676. (2) If the holograph writing and the will could not be regarded as idem negotium, the latter was, at any rate, simply a re-attestation of the earlier will of 16th December 1903. Under English law intervening codicils were regarded as addenda to the original will, and the re-attestation of the latter affirmed also the former. There was evidence that there was a clause of revocation in the earlier will also, and the probability was that it was only a clause of style—Williams on Executors, 10th ed., pp. 140, 147; Wade v. Nazer, 1847, 1 Rob. Eccl. 627; Green v. Tribe, 1878, 9 Ch D 231; Upfill v. Marshall, 1843, 3 Curt. 636. The English law of re-attestation had been adopted in Scotland in Dalglish's Trustees v.Crum (cit. sup.), and affirmed in Tait's Trustees v. Chiene (cit. sup.), and it was not necessary that the re-attesting will be in identical terms with the earlier one— Wade v.Nazer (cit. sup.), and Dalglish's Trustees v. Crum (cit. sup.)—so long as they were practically the same as in the present case.

Argued for the first, third, fourth, and fifth parties—The writing of 21st December 1903 was revoked by the subsequent settlement, which contained in gremio two passages which were inherently incompatible with the former document, viz., (1) the clause of revocation, and (2) its reference to writings “to be hereafter executed.” These passages were unambiguous, and extrinsic evidence was therefore incompetent—Jarman on Wills, 6th ed., p. 2209; Dickson on Evidence, secs. 1052–1055; Pattison's Trustees v. University of Edinburgh, August 11, 1888, 16 R. 73. There was no dispute in the present case as to the testamentary character of the writings in question. The sole question was as to the effect of the clause of revocation, and that was clear. In Allan v. Glasgow, August 14, 1846, 5 Bell's App. 379, there was a limited clause of revocation, and therefore the earlier will was to that limited extent sustained. In Tait's Trustees v. Chiene, cit. sup., there was a real though latent ambiguity. In Greenough v. Martin, cit. sup., the clause of revocation was ambiguous in its application to a series of codicils. The other cases founded on by the second parties either belonged to a different class or contained some ambiguity in the deeds founded on. On the assumption that the evidence was competent, it was insufficient to contradict the unambiguous terms of the second will, which was a substantially different will from the first. The English doctrine of re-attestation had not been adopted in its entirety in Scots law. Dalglish's Trustees v. Crum, cit. sup., was the only case in Scotland in which it had been given effect to, and in that case it proceeded on the ground that there was complete identity of the two deeds, and that there was no revocation of prior deeds in the later

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of them. In certain circumstances in Scots law there might be implied revocation— Turnbull's Trustees v.Robertson, 1911 S.C. 1288, 18 S.L.R. 1033. Even in England the doctrine of re-attestation was not a rule of universal applicability, but depended on the circumstances of the case— In re Rawlins, 1879, 48 L.J. P. D. 64, per Lord Hannen at p. 65. Assuming, therefore, that Scots law accepted the doctrine, it must be accepted secundum subjectam materiam, and it was impossible in the present case to say that the testatrix had confirmed the codicil dealing with the £1500 by dealing with it in a different way in the will. Tait's Trustees v. Chiene, cit. sup., was not an authority on re-attestation, but on the construction of the ambiguous words “of even date” in the deed.

At advising—