Scottish Court of Session Decisions

Adam Simson and others, the trustees nominated under a trust-disposition and settlement and codicil of the late Alexander Simson, 9 South George Street, Dundee, first parties, and Mrs Janet Gibson Alexander or Simson, wife of the said deceased Alexander Simson, second party, brought a Special Case to determine the effect of a holograph testamentary writing executed by the deceased.

The Case stated—“1. The late Alexander Simson (hereinafter called ‘the truster’) died upon the 3rd day of May 1920 survived by his wife, the second party hereto. There were no children of the marriage surviving, the nearest relatives of the truster being his brother the said Adam Simson and the children of his deceased sister Mrs Catherine Simson or Wilson, viz., Mrs Maggie Simson Wilson or Alexander, wife of William Alexander, 88 Hyndland Road, Glasgow; Mrs Blanche Edward Simson or Anderson, wife of George Stoddart Anderson, 24 Hunter Street, Kirkcaldy; Ada Jessie Wilson, 14 West Albert Road, Kirkcaldy; and Kate Rennie Wilson, 14 West Albert Road, Kirkcaldy. The truster left a trust-disposition and settlement dated 23rd April 1900, and codicil dated 22nd March 1915, by which he conveyed to the trustees therein named and for the purposes therein mentioned, the whole estate and effects, heritable and moveable, real and personal, then belonging or which should pertain and belong to him at the time of his decease, and he nominated and appointed his trustees to be his sole executors. The parties of the first part are the trustees nominated by the said trust-disposition and settlement and codicil. The said trust-disposition and settlement was prepared by John D. Bruce, S.S.C., Dundee, and the said codicil was prepared by Johnstone, Simpson, & Thomson, solicitors, Dundee, in whose custody the trust-disposition and settlement and codicil were at the date of the truster's death.… 2. The settlement was granted by the truster in trust for the purposes therein mentioned, viz.—(First) For payment of debts, funeral charges, and the expenses of executing the trust; (second) for the use and possession by the second party of his whole household furniture that might be in or about his dwelling-house at the time of his death, and that during all the days of her life, and so long as she should remain unmarried; (third) for payment to the second party of a reasonable sum for mournings; (fourth) for payment to the second party as soon as convenient after his decease of the sum of £150; (fifth) for payment to the second party during all the days of her life so long as she remained unmarried of the net annual income or proceeds of the whole residue of

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the estate and effects, and in the trustees' discretion for making such advances from the capital of such residue as they should consider proper; but it was provided that in the event of his wife again marrying the foresaid provisions of the liferent use of his furniture, and of the payments of the annual proceeds of the residue of his estate, and any claim to advances from the capital thereof, should as and, from the date of her second marriage cease and determine, and she should no longer have any right to said provisions, and on that event happening it was provided she should deliver up to his trustees the whole of said furniture, &c., and in lieu of said provisions his trustees were directed on and after that event to make payment to his wife of an annuity of £30 sterling during all the days and years of her life. (Lastly) On the second marriage of his wife, in the event of her again marrying, his trustees were directed, after setting apart from said residue a portion thereof for said annuity, to pay and divide the remainder thereof among such of his brothers and of the children of his late sister Mrs Catherine Simson or Wilson as might be then surviving, and the issue of any of said brothers who might be then deceased, and that in the proportion therein mentioned, and on the decease of the second party his trustees were directed to pay and divide the whole residue or remainder thereof remaining undivided among such of his brothers and the children of his late sister as might be then alive, and the issue of any of his brothers who might be then deceased, and that in the proportions therein mentioned. The said codicil of 22nd March 1915 recalled the appointment of certain of the trustees appointed by the said trust-disposition and settlement, appointed new trustees, cancelled the legacy of £150 to the second party, and subject to said alterations confirmed the settlement. 3. After the truster's funeral there was found in the deceased's repositories a holograph writing by him to the following effect, viz.—‘9 South George Street, Dundee, 2 nd May 1910.–1920.—I leave and bequeath all my monies and belongings to my dear wife Janet Gibson Alexander Simson.— Alexander Simson; Witness, David Allan; Witness, Agnes S. Allan.’ The parties are agreed that the true date of the said writing is 2nd May 1920. Subsequently there were also found in the deceased's repositories two holograph writings dated 2nd August 1901 and 29th October 1907 respectively. The writing of 2nd August 1901 is as follows:—‘2 nd August 1901.—I, Alexander Simson residing at Gilmour Place, 11 Bonnybank Road, Dundee, wish all my properties and monies and household effects paid over to my wife Janet Gibson Alexander or Simson after my death. The will I have at present in the hands of John Duff Bruce, S.S.C., Reform Street, Dundee, should now be void.— Alexander Simson.’ The writing of 29th October 1907 is in these terms:—‘I, Alexander Simson, house proprietor, residing at 11 Bonnybank Road, Dundee, do hereby give and bequeath my whole estate and effects, real and personal, of which I may die possessed or be entitled to unto my wife Janet Gibson Alexander or Simson. The will written out by the late John Duff Bruce, solicitor, 69 Reform Street, Dundee, and now in the possession of Johnstone Simpson, & Thomson, solicitors, 87 Commercial Street, Dundee, I declare void.— Alexander Simson, 29 th October 1907.’ 4. The truster's moveable estate consists of moveable furniture and personal belongings valued at £105, 4s., together with cash in house amounting to 19s. 1d. The funeral expenses amount to £21, 19s. 6d., and there are claims against the estate amounting together to £13. The truster's heritable estate consists of a property in Union Place, Broughty Perry, valued at £1000, subject to a bond for £700, and another property in Ramsay Place, No. 77 to 79a St Vincent Street, Broughty Perry, valued at £1200, subject to bonds amounting to £640. 5. Certain questions have arisen among the parties hereto with reference to the meaning of the truster's various testamentary writings. The first parties contend that if the effect of the writings of 2nd August 1901 and 29th October 1907 was to revoke the trust-disposition and settlement of 23rd April 1900 said trust-disposition and settlement was subsequently confirmed by the codicil of 22nd March 1915, and that the writing of 2nd May 1920, if testamentary in character was not framed in such terms as to carry heritable estate, and that accordingly the heritable estate falls to be administered in terms of the said trust-disposition and settlement and codicil. The second party contends that it was the intention of the truster by the said holograph writing of 2nd May 1920 to revoke all previous testamentary writings, and that the said writing leaves and bequeathes to her the whole property of the deceased whether heritable or moveable; alternatively, however, if the said writing does not bequeath heritage, she contends that she is entitled to succeed to the heritable estate by virtue of the writings of 2nd August 1901 and 29th October 1907 or either of them, which writings are not revoked by the codicil of 22nd March 1915.

The questions of law were—“1. Is the second party in virtue of the holograph writing by the truster of 2nd May 1920 entitled to the whole estate of the truster, heritable and moveable? 2. If the first question be answered in the negative, (1) is the second party by virtue of said writing of 2nd May 1920 entitled to the moveable estate of the truster, and (2) does the heritable estate ( a) fall to be administered in terms of the trust-disposition and settlement of 23rd April 1900 and codicil of 22nd March 1915, or ( b) fall to be administered in terms of the writings of 2nd August 1901 and 29th October 1907, or either of them?”

Argued for the second party—The expression “all my monies and belongings” was equivalent to “all that belongs to me.” The use of the word “all” showed an intention to deal with everything which the testator had to dispose of, and the word “belongings” covered everything

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disposable— Smith's Executors v. Smith, 1918 S.C. 772, 55 S.L.R. 716; Dunlop v. M'Crorie and Others, [1909] 1 S.L.T. 544. If the expression “all my monies and belongings” were interreted to mean moveable estate excluding heritage the testator's wife would get practically nothing. Such an interpretation should be rejected, because it was unlikely that the testator intended that his wife should be left with nothing— Easson v. Thomson's Trustees, (1879) 7 R. 251, 17 S.L.R. 239, per Lord Ormidale at 7 R. 254, 17 S.L.R. 241. Scott's Trustees v. Duke, 1916 S.C. 732, 53 S.L.R. 551, was also referred to.

Argued for the first parties—The expression “monies and belongings” did not cover heritage. Unequivocal evidence was necessary to show that it did. The testator was not an illiterate person. He had previously executed testamentary writings, and knew what were the proper words to use in order to express his intentions The word “monies” did not cover heritage— Easson v. Thomson's Trustees; Dunsmure, &c. v. Dunsmure, ( 1879) 7 R. 261, 17 S.L.R. 134. The conjunction of the words “and belongings” with the word “monies” did not add to the limited meaning of the word “monies”— Edmund v. Edmund, ( 1873) 11 Macph. 348, 10 S.L.R. 210. “Belongings” was an unusual word to use to describe heritable estate. The testator's intention to exclude the heritage from the bequest was not an unlikely intention. His wife was not left unprovided for. She got a liferent of the whole estate.