Scottish Court of Session Decisions

Miss Jessie Stewart, as one of the testamentary trustees of Mrs Mary Stewart or Thompson of Pitmedden (her sister), and as one of the tutors and curators nominated by Mrs Thompson's trust-disposition and settlement to George Thompson, adopted son of Mrs Thompson, and as an individual, pursuer, brought an action against Duncan MacLaren, S.S.C., Edinburgh, and Alasdair Iain MacLaren, W.S., Edinburgh, his son, defenders, containing conclusions for the reduction of certain testamentary writings of Mrs Thompson, and also the following alternative conclusion—“… It ought and should be found and declared by decree of our said Lords that the said codicil of 28th June was superseded and revoked by a codicil executed by the said Mrs Mary Stewart or Thompson dated the 10th day of July 1915, and that the defender Alasdair Iain MacLaren is not and never was a trustee and executor or a tutor and curator of the said George Thompson, under the testamentary writings of the said Mrs Mary Stewart or Thompson.”

The facts of the case in so far as they relate to the subject of this report were—Mrs Thompson executed a trust-isposition and settlement on 12th June 1915 appointing the pursuer, Sir David Stewart (her sister and brother respectively), and the defender Duncan MacLaren to be her trustees and executors and tutors and curators to her adopted son. On 13th June 1915 Mrs Thompson executed a codicil making various bequests, which included a bequest of £500 “to each of my trustees who shall accept and take upon themselves the duties and responsibilities of executing” the trust. On 28th June 1915 Mrs Thompson executed another codicil, in which she appointed the defender Alasdair lain MacLaren “to be a trustee and executor and a tutor and curator to my adopted son George Thompson under my trust-disposition and settlement.” Difficulties arose as to the signature of that codicil, which was nearly illegible owing to the testatrix's feeble health at the time, and ob majorem cautelam on 10th July 1915 Mrs Thompson executed notarially another codicil, which repeated the terms of the codicil of 28th June, except that the appointment of Mr Alasdair Maclaren as trustee

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and tutor and curator to George Thompson was omitted. It further provided—“And except in so far as altered by this codicil I hereby confirm the said trust-disposition and settlement and relative codicil thereto dated respectively twelfth and thirteenth June Nineteen hundred and fifteen.”

The pursuer pleaded, inter alia—“2. Failing decree of reduction being pronounced in terms of head 3 of the first conclusion of the summons, the pursuer is entitled to declarator in terms of the alternative conclusion in respect the codicil of 28th June 1915 was revoked or cancelled by the codicil of 10th July 1915, and has no effect as part of Mrs Thompson's testamentary dispositions.”

On 5th July 1918 the Lord Ordinary ( Hunter), after a proof, assoilzied the defenders from the conclusions of the summons.

Opinion ( in so far as dealing with the subject of this report)—“… The pursuer has an alternative conclusion to the main crave for reduction of the will and codicils to the effect that it should be held that the codicil of 28th June was superseded and revoked by the codicil of 10th July 1915. The effect of this contention if sound would be that the pursuer and her brother, being a majority of the trustees, would be entitled to control the management of the trust. I cannot think that this result would be in the best interests of the boy George Thompson, who ultimately succeeds to the great bulk of the estate. The ground for maintaining this proposition is that the testatrix in the codicil of 10th July 1915 confirms her trust-disposition and settlement, and relative codicil thereto, dated respectively 12th and 13th June 1915, and makes no mention of her codicil of 28th June 1915.

“In Mellis v. Mellis's Trustees, 1898, 25 R. 720, 35 S.L.R. 552, a deceased person left (1) a trust-disposition and settlement dated 21st March 1879, containing a clause revoking all prior testamentary writings; (2) a codicil on a separate paper dated 3rd May 1879; (3) a trust-disposition and settlement dated 17th May 1879; (4) codicil appended thereto dated 22nd May 1879; and (5) a codicil dated 30th June 1881, written on the same paper as the trust-disposition and settlement of 21st March 1879. This last writing, after making certain alterations on the deed of 21st March 1879, homologated and approved of that deed in all other respects. It was held that the effect of the last codicil was to revive the settlement of 21st March 1879, but not the codicil of 3rd May 1879, and that the later deed and codicil were revoked absolutely.

The pursuer relied upon this decision as an authority in favour of her contention. The case, however, appears to me to be quite different from the present. In Mellis's case at the date when the deed of 21st March 1879 was set up by the last codicil, it had been superseded by the later settlement. But for the deed reviving it it would have had no effect as an expression of the testator's intention. In the views of Lords Young and Trayner the deed was to be regarded as of the date when it was revived, with the result that the general clause of revocation in it revoked all testamentary deeds of a date earlier than that date. In the present case the settlement and codicil that were confirmed had never been recalled. The codicil of 10th July 1915 does not bear on its face to recal any previous deed, and there is nothing in its terms to prevent it being read along with the previous testamentary writings of the testatrix. The mere fact that no mention is made of the codicil of 28th June does not necessarily mean that the testatrix intended to recal it. On the evidence led I am satisfied that she had no such intention. As I have already indicated, the codicil of 28th June was validly executed, and I see no reason for refusing effect to its terms.”

The pursuer reclaimed, and argued—The codicil of 10th July confirmed the will and the codicil of 13th June, but did not confirm the codicil of 28th June. The omission could not be explained on the footing that the testatrix had forgotten about the codicil of 28th June; the interval of time was too short, and the codicil of 10th July was executed notarially because there had been a difficulty about the signature of the codicil of 28th June. Consequently the omission must have been deliberate. If so, revocation of the codicil of 28th June must be inferred. The codicil of 10th July by confirming the will and codicil of 13th June had the effect of republishing them as at its date, i.e. 10th July. If so, the will, regarded as speaking from 10th July, contained a clause revoking all prior testamentary writings, and those included the codicil of 28th June. If not, the codicil of 28th June was part of the testamentary writings and yet was deliberately not confirmed, which was an absurd result— Mellis v. Mellis's Trustee, 1898, 25 R. 720, and per Lord Justice-Clerk Macdonald at p. 727, 35 S.L.R. 552. The appointment of the additional trustee was revoked by implication— MacLeod's Trustees, 1871, 9 Macph. 903, per Lord President Inglis at p. 908, 8 S.L.R. 597; Scott's Trustees v. Duke, 1916 S.C. 732, 53 S.L.R. 551, was distinguishable. In any event it was for the defenders to demonstrate that the codicil of 28th June was still in force. The onus upon them was heavy and they had not discharged it.

Argued for the defenders (respondents)—If ex facie writings are testamentary, the whole of them must be read and construed together even although they make double provisions— Stoddart v. Grant, 1851, 1 Macq. 163; Gordon's Executor v. Macqueen, 1907 SC 373, 44 S.L.R. 279; Low's Executors, 1873, 11 Macph. 744, and per Lord Cowan at p. 748, 10 S.L.R. 505. The last two cases showed that revocation if not express could only arise out of necessary implication, and there was no necessity here. The confirmation in the codicil of July operated retro, as the will was not null and void but merely reducible— Gall v. Bird, 1855, 17 D. 1027, per Lord Cowan at p. 1030. The question whether the second codicil formed part of the testatrix's testamentary writings was a question of the intention of the granter— De La Saussaye, (1873) L.R. 3 P. & D. 42; Follett v. Pettman, (1883) L.R., 23 Ch. D. 337. Parole evi dence

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was competent to show the intention in omitting the codicil in question from confirmation—Williams' Executors, 10th ed. p. 125; Jenner v. Ffinch, (1879) L.R., 5 P. D. 106, per Sir James Hannen at 109; Colvin v. Hutnhison, 1885, 12 R. 947, per Lord M'Laren at p. 953, 22 S.L.R. 632. The evidence showed that the testatrix intended the codicil in question to have testamentary effect.

At advising—