Scottish Court of Session Decisions

At advising on 2nd February 1943,—

LORD JUSTICE-CLERK (Cooper).—The circumstances giving rise to this case are detailed in the opening passages of the Lord Ordinary's opinion, which I adopt. Before us, as in the Court below, the argument was confined to the question whether the bequest in favour of the reclaimer of a valuable stamp collection had or had not been revoked by the testator's subsequent will. The reclaimer presented his case in two chapters, by maintaining (a) that the bequest in his favour was irrevocable because the holograph document in which it was embodied had been "delivered" by being posted to him by the testator three years before the latter's death and thereafter left in his possession; and (b) alternatively, and on the assumption that the bequest was not irrevocable, that it had not been revoked.

The generalised proposition initially submitted by Mr Wilson in support of the first chapter of this argument was that delivery of any testamentary deed to the beneficiary deprives the testator of the power to revoke; but before he had concluded he had restricted his proposition to testamentary deeds conferring a specific bequest.

In view of the importance of the question thus raised as to the effect, if any, of delivery of testamentary deeds so far as their revocability is concerned, and in justice to the able debate to which we listened, I feel bound to examine with care the reclaimer's submission both in its wider and its narrower form.

The wider proposition that delivery to the beneficiary of the deed by which a testamentary bequest is conferred deprives the testator of the power to revoke the bequest owes its origin to passages in M'Laren on Wills and Succession, certain of which were repeated by Lord Russell (Ordinary), in M'Lachlan v. Seton's Trustees and others of which were quoted and founded upon by Lord Mackay in his dissenting judgment in the same case. M'Lachlan v. Seton's Trustees was a case of a contractual bequest and not of an ordinary testamentary writing, and the observations of the two learned judges, in so far as applicable to ordinary testamentary writings, may therefore be described as obiter. Lord Russell, following Lord M'Laren's phraseology, formulates the alleged rule positively as a statement of the conditions under which the testator can revoke. Lord Mackay, however, reads the rule as implying its converse when he says:—

"I repeat and emphasise that the revocable and ambulatory nature depends on both the estate and the instrument being subject to his (the testator's) control."

After repeated consideration I am not satisfied as to the precise meaning which Lord M'Laren intended to be given to his several pronouncements. The opening sentence of section 752 does not necessarily mean that its converse is true; but if it was intended so to be read, the converse statement cannot readily be reconciled with the opening sentence of section 753 or with section 758. Further, if the opening sentence of section 754 is to be read as applicable to testamentary deeds instead of being limited (as the marginal note suggests it should be limited) to inter vivosdispositions, the text is not supported by the cases cited in the footnote. The truth is that throughout section 1 of chapter XXII it is often difficult to know whether the learned author is dealing with testamentary deeds or with inter vivos deeds by which an immediate and indefeasible right is conferred. In that situation the question requires examination afresh in principle and on authority.

It is necessary to emphasise that in form and substance the deed of bequest here in question is an ordinary testamentary writing. No question arises with regard to the specialties associated with agreements to test or contractual wills. The general principle which underlies and explains the rules of our law with regard to the revocability of ordinary testamentary writings (by which I mean testamentary writings unaffected by any contractual element) is that they are, inherently and sua natura, ambulatory, and intended and understood to take effect only at the death of the testator. Hence it is that a will or testament has been described in our law from the earliest times as a "last will"—the "ultima voluntas" of Regiam Majestatem and the "latter will" of Balfour and Stair.

Further, it is (generally speaking) true that written deeds, other than ordinary testamentary writings, require for their efficacy that they should be delivered to the grantee or to someone on his behalf. Delivery of the deed is usually the indispensable "token of complete engagement." So long as the deed is in the custody of the granter, it cannot be held that he has "finally resolved to be bound by it," and it is "not obligatory." To this rule ordinary testamentary writings have always been recognised as an exception, not by any arbitrary doctrine of positive law, but because of the essential nature of such writings. The reason for the exception as given by Erskine is "because the effect of testamentary writings commences only at the period of the granter's death." Death in the case of a testamentary deed is thus the counterpart of delivery in the case of a deed not testamentary in character, and the law in effect implies in every ordinary testamentary deed a clause dispensing with delivery. Conversely, a deed which is rendered irrevocable by delivery cannot be an ordinary testamentary deed in the sense defined, but must be something else or something more.

In light of this background of principle it is not surprising that Scots law has developed consistently on the lines of denying to delivery in the case of ordinary testamentary deeds the effect which is ascribed to it in the case of deeds not testamentary in character. The progressive development of the law between 1776 and 1843 is worthy of note. In Leckie v. Leckie, it was held that a mortis causa disposition of all the granter's moveables as at his death was revocable notwithstanding delivery of the deed to the grantees, because the deed "could operate no transference till the granter's death." In Dougall v. Dougall a deed of a testamentary nature containing a clause of warrandice which imported renunciation of power to revoke was nevertheless held to be revocable. In Balders v. Ireland a deed which bequeathed a legacy in consideration of past services and as an inducement for future services and which was delivered to the legatee was held to be revocable, though it is right to add that the deed reserved power to revoke. In Sommerville v. Sommerville, the question arose with regard to a mortis causa disposition omnium bonorum which was delivered to the grantee. In the course of the case it was conceded, following the case of Leckie v. Leckie, that quoad the moveables the disposition was still revocable notwithstanding the delivery, and, though a similar decision was pronounced after two hearings with regard to the heritage, the decision on this point must be received with caution in view of the then state of the law with regard to mortis causa dispositions of heritage. In Miller v. Dickson, a testatrix who had conveyed her whole moveable estate by will to a named universal legatory, and who had delivered the deed to him, was held, notwithstanding the delivery of the deed, to be entitled to revoke. In Trotter v. Trotter a similar decision was pronounced with regard to a legacy of £500 contained in a testamentary deed delivered to the legatee.

This tract of decisions which ended 100 years ago has since been treated as having settled the law. Ivory, in his notes to Ersk. Inst. III, iii, 91 and III, ix, 5, published in 1828, twice affirms that delivery to the beneficiary does not deprive the testator of power to revoke a testamentary deed, and cites Dougall, Balders, Sommerville and Miller v. Dickson . The next editor, M'Allan, at II, p. 653 of his edition published in 1838, cites Miller v. Dickson for the proposition that a deed bearing to be executed mortis causa is held to be revocable though delivered. Ivory's note to Inst. III, ix, 5, was cited by Lord Neaves in Miller v. Milne's Trustees with the added observation:

"it is certain that a mortis causa deed is in general revocable though communicated and delivered."

Ivory's note was left unaltered by Nicolson in his edition of the Institutes of 1871. In Paterson v. Paterson, Lord Kincairney, whose judgment was affirmed, said that "it is settled that … a mortis causa deed will not be protected or rendered irrevocable by delivery," and cited Miller v. Dickson . The law is stated in similar terms in the standard works on conveyancing—Menzies, Lectures, (1857 ed.) p. 465; (Sturrock's ed.) pp. 204, 425; Montgomerie Bell, (1st ed.) p. 898, (3rd ed.), vol. ii, p. 970; Craigie, Moveable Rights, (2nd ed.) p. 536—and in the latest edition (1899) of Bell's Principles, section 1866. As an indication of the present understanding of the profession it may be added that the same rule is repeated in modern textbooks. The opposite view—if it be an opposite view—first emerged in M'Laren's expanded second edition of 1868 and was repeated verbatim in the third edition of 1894.

In these circumstances the Solicitor-General was constrained to admit that on this branch of the argument he could not ask for a decision in his favour except before a Court of Seven Judges in which the earlier decisions, and especially Miller v. Dickson, could be reviewed. In my opinion no justification has been shown for such a step. The doctrine now sought to be challenged was foreshadowed in a decision of this Court nearly 170 years ago, and, after several unsuccessful challenges, the law has been treated as settled for a century. It is in harmony with the principles of the law of wills. On its basis transactions must have been settled and rights determined on many occasions. It is for these very reasons, coupled with my doubts as to the interpretation to be placed on certain passages of his work, that I find it very difficult to believe that Lord M'Laren really intended to lay down the law in a contradictory sense, especially since he nowhere indicates that he is conscious of so doing, but on the contrary cites Miller v. Dickson in a footnote to section 754, without suggesting that in his opinion the case was wrongly decided. It is true that the learned author of the Supplement to Wills and Succession makes no comment on the subject, but it is to be noted that he expressly disclaims any attempt to revise the work, his limited aim being to bridge the gap in legal development between 1894 and 1934.

If, however, the passages in Wills and Succession founded on by the reclaimer were intended to bear the meaning that the granter of an ordinary testamentary deed loses the power to revoke by delivering the deed to the beneficiary, it must in my view be affirmed that that is not the law of Scotland.

I pass to the restricted proposition that delivery of a testamentary deed deprives the granter of power to revoke if the subject is a specific bequest. As the case of Trotter shows, the suggestion that delivery bars revocation has already been negatived in the case of a pecuniary legacy, and I can see no reason in principle for laying down for the first time an exception to the general rule of which no hint or trace is to be found in any of its many formulations, and which, if it be sound, could hardly have eluded so many judges and writers of authority.

Being accordingly of opinion that the bequest of this stamp collection is not irrevocable, I proceed to consider whether it has in fact been revoked.

For the reasons stated by your Lordships I agree that there is no necessary incompatibility between the bequest of the stamp collection and the bequests conferred by the subsequent general settlement, and that, if the question had fallen to be decided solely as one of implied revocation, the bequest of the stamp collection could have survived. In reaching this conclusion I admit as one of many elements the fact that the deed containing the earlier specific bequest was delivered to the legatee, for the fact of such delivery, though incapable of depriving the granter of power to revoke, may nevertheless have relevance to the question whether a later bequest of "my whole estate, heritable and moveable," does or does not include a specific subject of an exceptional nature which has been dealt with in so exceptional a way. My difficulty is created by the express direction with which the settlement concludes—"I cancel all wills previously executed by me," a direction which is given not in a home made and informal testamentary writing but in a formally executed settlement, which, oddly as it is drafted, was prepared by a solicitor; (cf. Lord Ormidale and Lord Gifford in Dunsmure's Trustees).

The question whether the words "all wills" embrace the bequest of the stamp collection is a question of interpretation to be determined, as all such questions must be determined, by seeking for the testator's intention. But that intention must be gathered solely from the language of the deeds, read against the background of such extrinsic facts as are relevant and admissible in the construction of wills, and not by conjecturing what the testator probably meant to say, or what he would have said if his attention had been pointedly drawn to the matter in issue. "There are cases where the words used are such that the Court is bound to give an interpretation which in its heart it is perfectly certain is not what the testator would have wished." I therefore concentrate upon the "words used."

The word "will" is open to construction, especially when used in its popular sense by a non-professional man. The context (aided perhaps by relevant surrounding circumstances) may show that it is used in a sense either wider or narrower than its strict definition. In particular, if the deeds under construction are used as their own dictionary, it may be plain that "will" includes a marriage-contract or deed of appointment; or that "will" is used in contradistinction to "codicil"; or as referable to only one (usually the last) of a series of instruments expressive of testamentary intention; or as indicative of a general settlement as distinguished from a special bequest; or even of a formal deed as distinguished from an informally executed testamentary writing. While recognising that these possibilities are open, I consider that the normal and natural meaning of the words "I cancel all wills previously executed by me," occurring at the end of a formally executed settlement, is that all previous writings of a testamentary character are revoked, and that a heavy onus demonstrandi lies on those who seek to exclude from the generality of this revocation a testamentary writing executed only two years previously. I can find no grounds for regarding that onus as discharged in this case. If this testator had died on 8th August 1939, the deed of bequest of 1937 would unquestionably have formed (together with other earlier testamentary writings which we were told the testator had executed) an integral part of his "will" in the eyes of the law, and it seems to me to matter nothing whether he knew that, or whether he had forgotten the deed's existence, or whether either he or his legal adviser may have imagined that the language which was employed would not have the effect of revoking the earlier bequest. Equally, I cannot find a way of escape in the fact that the testator does not purport to revoke "wills or other testamentary writings" or "all previous testamentary writings," for I know of no authority for assigning to the words "all wills," when used simpliciter, and uncontrolled by their context, a meaning narrower than "all testamentary writings." Finally, if it is legitimate to speculate as to the testator's intentions (which I venture to question), it is perfectly possible that some happening within his own experience induced him in August 1939 to determine to devote to cancer research his entire estate (including the several thousand pounds which he thought his stamps were worth, and excluding only his coins), and that it was with the deliberate intention of diverting this substantial sum to the chosen charitable object that he included the clause of revocation in his will.

For these reasons, and agreeing in the result with the Lord Ordinary, I am regretfully compelled to dissent from the conclusion which your Lordships have reached on this branch of the case.

LORD MACKAY .—In my opinion the single question which we have to decide (by whatever road we reach it) in the present competition is one and indivisible and is a probate question. There are two documents presented to us and we are called upon to say whether one or both and, if one, which, represents the will, in the full and correct sense of the aggregate of testamentary writs which is the operative intention of the testator. It is true that, incidentally to that decision, questions of construction of such terms as "will," "whole estate," or others, as used in particular contexts, may arise and may have a bearing upon the question of selecting the correct documents: but it is also true beyond dispute that in the probate question a certain conspectus of facts and circumstances surrounding the competing documents is by law to be taken into account. An excellent illustration of the recognition of this probate factor will be found in the question sent to the full Court in Baird v. Jaap .

(It is surely unnecessary to explain that by the convenient phrase "probate question" I indicate the very broad distinction between the first consideration for every will case, which of several or many documents constitute the testator's complete will, as distinct from that other question, what substantive effects do the documents as combined establish. If one wishes, substitute the larger and cautious expression wherever "probate question" occurs.)

The case was argued to us as two questions and as if the second was subordinate and only arose if the first was negatived. These were: Whether the letter posted to and received by George Simpson MacKnight in the year 1937 was revocable, and if it was revocable, whether it was revoked by the clause occurring in the document (No. 8 of Pro.) which runs:

"And I cancel all wills previously executed by me"

? It is my clear opinion that the second question is the important one and that the answer thereto renders it wholly unnecessary to apply our minds to the first, and incidentally to the very confusing set of older and later authorities on which the general question of irrevocability seems to depend.

I turn to that question. The first inquiry in any probate question is "Who propounds each document?" Our form of multiplepoinding, while permitting the proper questions, masks them. Now the answer to this is significant and I think startling. There are but three persons in the competition (the executor is the merest "holder"). Mr MacKnight undoubtedly propounds his letter of July-August 1937. Miss Elizabeth Clark propounds nothing. She sues solely and entirely as next-of-kin (really heir in mobilibus) ex intestato,and her only contention is in one significant sentence "The bequest of the residue of the testator's estate" (nota bene: residue is a misquotation) "to the Pathologist Society … being null and void and the bequest of the stamp collection having been revoked, this claimant as next-of-kin and heir-at-law of the testator is …" etc. The Pathological Club (Claim No. 11 of process) certainly proposes to ask probate in the sense I have given above for the document called a "will" of date 9th August and a codicil 26th July 1940; but they do not propound these two documents as hostile to Mr MacKnight's claim, No. 12 of process. For both by their contention and by their plea in law they exclude from their claim altogether the stamp collection. In my judgment, here already is a state of matters which should cause the Court serious consideration. There is really no substantive propounder of the "will" as demolishing the "specific bequest," because I read, for my part, the pleading of the Club as showing that they correctly realised (what will appear as my own opinion) that the testator intended "estate" in a limited sense. I do not say that a person claiming a complete intestacy may not rely on a revocation clause even if it stood bare, all gifts to which it was intended to open the way having failed. Apparently it has been otherwise decided, whether with good reason I will not here attempt to say. But I do think a Court is entitled to make in dubio every presumption and every intendment in order to sustain a specific and very suitable destination of a very special subject as against a mere intestacy claimant.

On this question, I think there was force in what the Solicitor-General argued that it is a most extraordinary thing that the other two claimants, only one of whom made any appearance at our bar, should in effect go out of competition by a joint minute (No. 23 of Process) each (without the consent asked of MacKnight) conceding to the other something which the Court might never have seen fit to give. It was put in answer that this merely meant that there might have to be "adjustment," so that (a) something to correspond to a "liferent" of a valuable stamp collection might somehow be discovered, or (b) the "fee" of it should be evalued, or somehow assigned to the Club. But why should it be merely an adjustment? The thing goes deeper. To me the matter goes far beyond correcting by an adjustment, because I cannot see that after that Joint Minute is executed and lodged, Miss Clark has any right to persist in the process and propound (in order to get for herself a further fee of the worth of say £500) the proposition as to the true scope of the will and codicil, which was a plea open to the Club, who has renounced it. I leave this there, because there are materials for the decision of more moment.

The true way of deciding whether the document of 9th August 1939 and the substantive gifts therein abolished or destroyed the document of 4th July 1937 is to treat it as a pure quœstio voluntatis. I think the Solicitor-General was well founded in reminding us that the following three propositions were elementary: (1) It is entirely a question of intention express or implied as to how far a general revocation clause goes. (2) That intention is to be gathered from the whole writings put forward, looked at together. (3) While that is so the Court is not to resort to speculation or mere inference from bare "probabilities." To these, later on, he found it well to add a fourth:—(4) That the facts and circumstances (within a certain restricted area) in which each document was made, delivered, and found at death have a proper bearing. I think all four propositions are sound, and I quote a few sentences from Lord Gifford in Dunsmure v. Dunsmure :

"In such cases"

(he meant in non-professional wills) "indeed I think I may say in all cases—the Court, upon which is laid the duty of discovering the testator's meaning from his deed, is entitled to be put in the same position as that which the testator himself occupied. They should know as far as the testator himself did of what his estate consisted and where it was situated, what were his relations to the legatees and beneficiaries, and generally the circumstances in which he was making his will. Thus only will the Court be able to judge what he probably meant by the words he used, especially if these words have no technical or absolutely fixed meaning and extent, but are popularly used, sometimes with a larger and sometimes with a more limited signification." Further, I think it perfectly clear on ample authority that among the circumstances having a strong bearing are the facts as to where the competing (or cumulative) documents are discovered at death. Now, here that discovery was as follows: the 1937 document was in the sole custody of Mr MacKnight, who alone is the donatary of the specific bequest: the other two documents were in the testator's own repositories or with his law agent. Between the latter alternatives we are not vouchsafed information. What, one asks, is the relevance of asking such questions except to get at the fact of delivery, and the animus by which any delivery is to be judged? In other words, I am clear that whatever effect Montgomerie Bell or Lord M'Laren or other writers, as text writers, may assign to delivery as having the power of totally barring revocation express, that fact of an inter vivos confiding knowledge of, and power over, the corpus of the writing to the very person alone mentioned in it is a relevant fact in this part of our inquiry.

In this extraordinarily meagre proof—this acceptance of the statements made by the executor as being the equivalent of a proof—what else have we? The following, all relevant, I think:—(1) The testator was a collector of things having value as a collection, probably far above their value as units. He collected coins, stamps, and curious old money orders. (2) He most clearly distinguished in his mind these collections from his general estate and counsels his relatives to have these kept up and retained as a whole. This he indicates, in the one case by giving a name to the collection and bequeathing it to a suitable museum: in the other he selects a friend, describing him as an old friend, calling the things also a "collection" in inverted commas. He also indicates his opinion of the total value as a collection as several thousand pounds. (3) In this connection I am further of opinion that the codicil of 26th July 1940 affords a further pointer in the same direction. I am aware it was pled as evincing something else. It is in my judgment really only an afterthought, and was due to the fact that in his own mind a quaint and rare old bank note figured among his coin collection, but he became aware that the law might foolishly, if logically, decide that as being still an effective money obligation it fell under the words "whole estate" in the earlier part of the "will." So he made clear what was his obvious intention from the first. (4) We are told at the bar that there were and still are other deeds of a testamentary type, dated probably both before and after 1937, to which the words "all wills … executed by me" can validly be referred. (5) We are told that this "will" was made by the help of a law agent indeed, but by the old man drawing up in his motor at the lawyer's door, the lawyer having been sent in for, and he there and then dictating his form of wishes. For my part, despite your Lordship's desire to treat it as a professionally drafted will, I cannot see any lawyer as an uncontrolled draftsman giving out the document we read as a production of his peritia artis.

I may add here that several of these things, all of which I believe to be relevant, ought really according to my judgment to have been averred and to have been the subject of proof or, at worst, of express admission. But they were, upon presentation, admitted at the bar.

When I put all these things together and now turn to the testator's use of words, I find almost no room for doubt left in my mind as to his true testamentary intention. I think it is fair construction (1) in considering his use of the words "whole estate, heritable and moveable," in the first clause, and there not embodied in a conveyance to any trustee or to the executor subsequently named but used in a direct grant or bequest, to hold those words (which if they were strictly or judicially read, would be a constitution of a universal legatory, and would exhaust as such everything he possessed or had power over) as being used popularly in some less exhaustive sense. I have actually the strong impression that he meant by "estate" his money investments, valuable furniture, etc., other than his special collections: (2) I read in conjunction with that, and as a support to it, the purpose of this first legacy, to wit, "For lectures on cancer." I cannot bring myself to believe that he now, only two years later, had decided to deprive the old friend, who at the moment held this deed, of a collection worth "thousands," in order to have it broken up and contributed towards the formation of a medical lectureship: (3) It is completely significant that unless the above reading of "estate" is adopted, the prior gift of the "whole" would not permit of, would swallow up, the specific gift following upon the intermediate nomination of an executor. It, like the other, is not couched as a trust direction, but is a direct bequest to a Museum. Between the two occurs the appointment of the executor, merely as a mandatary to fulfil the formal duties: (4) It was argued that the distinct treatment of the coin collection in this discrete way, while there is the absence of any mention of the stamp collection, indicates rather that the stamps were (by contrast) intended now to fall into and form part of his general estate. I think the inference is palpably bad. The correct inference (and these are all questions of inference, often indeed of impression, leading to the true voluntas) is to me that the old man was of the opinion (not unjustified in law) that his act of specially bequeathing the stamps and putting the document in his old friend's hands took it out of his power, and, therefore, that to mention the stamps here could not be consistent with what he had done before. These are my conclusions on construction, and determine the result that all three documents together are the aggregate of his last will.

There is one thing more. If I mention the then state of the law, I use the following only as corroborative. I may, however, express my personal opinion that frequently in such inquiries it is legitimate to consider the state of the latest judicial authorities in the law. For many purposes a person is held bound to know the law. In this case we know that the testator had a law agent at his command, even if the drafting itself may be the testator's own. At least we may assume a lawyer to have read the published opinions delivered in January 1937 and published.

In the report of the case of M'Lachlan v. Seton's Trustees, he would have read (a) that the Lord Ordinary, after debate, adopted the first sentence of paragraph 752 of M'Laren textually, appending the important words "It is well settled as a general rule that …" These are the words of the judge; and they applied to a delivered deed of bequest not distinguishable from the present gift: (b) that the leader of the Bar in the fourth speech admitted, to use the exact words of the Lord Justice-Clerk, as follows:—

"In view of the fact of delivery the learned Dean of Faculty did not maintain that Mrs Seton was entitled to go back on the binding obligation she had entered into. She had made an irrevocable bequest."

The italics are mine: (c) that one Judge in the Inner House, albeit after only partial debate and partial citation of authorities, had expressed judicial approval of the same and other passages in the leading text book. I do not mean that the opinions so couched were final, or incapable of review, but they were judicial opinions and the record of a very weighty concession at the Bar. I could hardly imagine any person dictating his own will to go behind these, and behind the high weight of M'Laren's chapter upon "Power to Revoke," and to consider an unreasoned case reported in the year 1826 as throwing serious doubt on those passages.

As I have said, however, irrespective of this application of recent authority, as to which application some may hesitate, I would reach the foresaid conclusion.

There remains, however, one argument to the heir in mobilibus.And it was forcefully used. It is that the revoking words are themselves absolute and not capable of construction. Indeed, there was no hesitation to urge it as one of those cases where the Court is compelled to assign a meaning to technical words in spite of in its heart being convinced of the contrary intention. The counsel for the heir in mobilibus argued that the word "will" and the words "previously executed" necessarily covered this "letter" of specific bequest, because he said it was "a will." I cannot, in the least, agree. I again refer to the classic passage of Lord Gifford on this point, and especially the forcible words in the last of those sentences.Where a man dictates his own testamentary deed and says "I will recall all ‘wills’" it is perfectly open to me to believe that he thought of and described "wills" in the way which most lawyers would, as indicating a general settlement of affairs, like the present one. That the one word "will" has various competent senses, I think is beyond dispute. Its proper and strictest legal sense is probably, as defined in England, the "aggregate of the mortis causa writings which together fulfil his completed intentions." But that it is even in law books and documents used in several other senses seems indisputable. It is also spoken of as contrasted with codicils: I find that up to 1873 Professor Montgomerie Bell strictly differentiates in every paragraph "the testament," from "a codicil" and still more from "a grant of a specific bequest." It may also be recalled that the latest Style-book phrase is one differently expressed and presumably drawn as wider than merely wills: it runs:—

"I revoke all previous writings of a testamentary nature."

An older and common phrase was "all wills and other testamentary writings." Personally, I go farther and venture to assert that few of us, if we had been called on to describe the letter of July-August 1937 and considered what it bore and what was done with it, would describe it as a "will." Testing my own mind with the matter I have decided that I would not. It is a bequest, or a document having effect as at the date of death or, as Montgomerie Bell says, a grant of a specific subject giving the nominee a jus in re or real right: further, he says that "in that case (i.e., when the thing remains with testator at death) it operates as a special conveyance giving the legatee right to demand … the subject bequeathed … against the holder of the article, if it be a moveable … or for delivery as the case may be." Obviously, in his time at least, these peculiar characters of a single and specific bequest were well recognised.

For these reasons I cannot sustain, in dubio and merely on behalf of intestacy, which is always presumed against, the contention that the delivered deed of 1937, or the bequest contained in it, was truly meant to be recalled by the general clause, placed where it is on the end of the principal represented by the copy document No. 11 of Process.

I have searched my conscience severely lest in arriving at this conclusion I be found to have committed the sin of "speculating," or bringing probabilities of intention to bear on the true interpretation of words. But I in the end absolve myself. Nevertheless, I may express some pleasure in the end, because morally I may say that I have not the slightest doubt that what I have expressed was the real and final desire of this deceased gentleman.

One other argument was used, but it only served to let in another similar point in favour of the view above taken. It was said that apart from the tenor of a revocation clause, and even in the absence of any revocation clause, the mere appearance of universality in a later deed itself operated implied revocation of everything of earlier date. The general rule (which is not entirely disputed) is best stated in the phrase that of competing gifts the later in date rules.

But in answer it was pled (besides the contention that there is here present no strict universal) that the rule has its exception, and that, expressly, it does not revoke specific grants mortis causa of ascertained subjects. I see, as my brother Lord Jamieson correctly says, that only an expression (it was more however than an obiter dictum) of Lord M'Laren made in the year 1907 was afforded us upon this topic. Although Lord M'Laren does not mention his authority for making the exception which he did, I discover the very exception noted as an established proposition in Montgomerie Bell's Lectures (3rd ed.) vol. II, p. 986. The Professor gives his authority as a case of Thomson v. Lyell . He adds also Kenmore's Trustees, which see. The sentence may be cited:

"But a special legacy is not presumed to be revoked by the granting of a posterior general disposition and settlement of the testator's property."

And I find Erskine himself in the Institute, III, ix, 11, saying:

"A special legacy is not understood to be revoked by a posterior general disposition; for the law presumes that the general disposition is granted with the burden of the legacy, unless it contain an express revocation of it."

[After moving the Court to pronounce an interlocutor recalling the Lord Ordinary's interlocutor and, inter alia, ranking and preferring the claimant MacKnight to the stamp collection, his Lordship continued]—

Second part. That my opinion should there have end is the dictate of strict logic. The other question to which I have referred was no doubt for a time debated and we ourselves spent some research upon it. But in my judgment the logically first question is whether, of the two documents, the whole or a part of the latter discloses an intention to supersede or revoke the former. If one is of opinion that it does not, it is more than superfluity to ask whether, if it had purported so to do, the holder of document A could defy the intention and say "You had no power. You had given me a vested and indefeasible right."

But your Lordship's view on the second portion has with equal logic led you to a fairly exhaustive discussion of the first. If, therefore, I add anything here at all it is partly out of courtesy to those views, and partly lest the profession should think there are now extant no two views of the very sweeping generalisations as to delivery.

The proposition for which Mr Keith contended is that "Delivery of any document to take effect mortis causa only is totally irrelevant." Will this or will it not stand the examination of the authorities? Your Lordship, I understand, favours the affirmative upon a fairly full citation of passages.

First of all it is right to say that I have fully and ripely reconsidered all the context and reasoning in the above-mentioned case of M'Lachlan: and in the result I see nothing to detract from in the judicial opinions by the judges there, including the dictum of Lord Russell: nor can I see that the concession given late in the day by the Dean of Faculty was other than correct. I understand that your Lordship sees no occasion to comment either. It is at the same time to be noted (1) that few of the earlier cases to be after-mentioned were cited and (2) that there was present the powerful element (not present here) of an obligatory transaction (proved prout de jure) which had preceded the delivery founded upon. The opinions would doubtless stand good on that alone: but the concession was actually placed purely on the delivery.

Now, what I say further will not be by way of supporting the counterview as my own final view. I think rather that my function is merely to show that these two currents or trends of thought may still be alive, and that the thing when it must be faced is possibly a point for a fuller Court. Further, what I shall say, being highly compressed, may appear brusque. I apologise beforehand for the brusquerie. These short propositions then may suffice. First, on a question of personal authority, I have taken Lord M'Laren, owing to his immense work on Wills and to his philosophical outlook, as standing at the top. He expressed the general view (which stands as the very first broadly stated proposition at the head of his chapter on "Power to Revoke," and which I am afraid I cannot read but as indicating that, in wills in particular, delivery has a crucial function, just because the fact must mean something, and the power of revoking is really a result of the retention of possession (involving the retention of power to cancel, alter, or destroy) in the wide generality adopted as well settled law by Lord Russell. I read Professor Montgomerie Bell—but in this case on a collation of several passages—as expressing just the same view as Lord M'Laren. Secondly, it is highly significant that the institutional writers are all silent, and will be searched in vain for the exception to that general rule of delivery for which the opinion just read cites Dickson on Evidence, Bell's Principles, and Erskine (Institutes).

The first appearance of this supposed exception is a note (No. 222 of Ivory's Edition, vol. ii, published in 1828):

"A deed, appearing on the face of it to have been granted mortis causa, is revocable, notwithstanding delivery, and though a power to revoke has not been expressly reserved."

Note that James Ivory, who was in 1828 a young advocate, and only reached the Bench in 1842, cites for this only Sommerville. He does not cite Miller v. Dickson, although that unreasoned decision was then only four years' old. I believe he does refer to it in another note. We must take it that the addition of that case, or at least of Miller v. Milne's Trustees as of Fernie, was the work of subsequent editors. At any rate Nicolson (1871) has them, all together stated in a note. My opinion upon Sommerville follows. Meantime I note that Professor Joseph Bell's four editions were from 1829 to 1839; and he takes note of neither the 1819 nor the 1826 decision. It is only his editor (Guthrie) in 1899 who adds this exception into Bell's text. I have ascertained that Guthrie was responsible for the sixth, seventh and eighth Editions, where the three words "nor will delivery" do not appear, see paragraph 1866 of seventh Edition. I do not know why Sheriff Guthrie changed his opinion. Yet it is true that this cumulation of commentators, Ivory, Nicolson, Guthrie, with one sentence in Professor Menzies' Conveyancing, is certainly considerable, if it did not appear that they all rely on one another, or on a single disputable authority. Comments on the decisions referred to will, in the circumstances, be very short. Leckie v. Leckie was not in point. It turned on an attempt (without delivery to any legatee) to rely on the phrase "I dispense with delivery." Clearly that will not do in a general moveable settlement. Why it was held to do so in heritage is obscure. Sommerville (which alone Ivory uses) is to me the type of decision on which no generality should be based. It is fundamentally and upon the face of its published reasonings unsound. Moreover it dealt with heritage, at a time when heritage could not be tested upon. There is an admission, cited in the narrative, about a "general moveable settlement of one's affairs," but of what weight is an admission then, especially against another such tendered by the Bar, only five years ago? Miller v. Dickson seemed to receive little notice till about 1866. It is the nearest in point, because a lady tried to get a mortis causa writing back. But the report is ridiculously short, no authority bears to have been cited, and no opinions are preserved. This was the solitary case (he said he found no difficulty with any other) which prevented us from having the assistance of the Solicitor-General on this whole topic. Whether he was right or not in conceding that it would require a fuller Court to review it is an affair entirely for counsel. But that was the effect. We had on this moot question only the assistance of the opening junior. The next cases, Miller v. Milne's Trustees and Fernie v. Colquhoun's Trustees, seem to be decisions on points in quite other matters, and can only have been cited into this group by mistake. As to Trotter v. Trotter, Lord M'Laren assigns it what he takes to be its proper place. I think I understand it to rest on rationesfar removed from the broad generality in question.

In considering the previous part of my opinion the case of Kenmore's Trustees v. Kenmore was mentioned. I am now satisfied that it is the case in the books which is much nearer to and more apposite to the point of decision here than any other. Unfortunately it was not quoted to us and has only been discovered by myself. (I may say that Lord Jamieson independently referred me to it; but what I mean here is that counsel at the bar had it not, and that its significance has not had the benefit of proper discussion.) In that case, apart from the existence of a generalised revocation clause, the facts were difficult to distinguish from those here. The question was of revocation of two delivered deeds which bore to bequeath and make over certain specific shares in bank stock, and again other stocks. After delivery the husband had conveyed all his residue to trustees in terms more clearly universal than in the present case. The Lord President said this (at p. 772):

"Now, the trust deed contains no express revocation of the prior holograph testamentary writings, and in the absence of express revocation it is an important circumstance that these writings were delivered, because, if Mr Kenmore afterwards intended to revoke these bequests, he ought to have made his meaning so clear as to leave no doubt upon the matter—in short, he should have framed his settlement in terms equivalent in their effect to an express revocation, for otherwise there is, I think, a pretty strong presumption that revocation was not intended."

The three other judges of the Division concurred simpliciter. This accordingly appears to me to be a unanimous decision, on reasons assigned, (a) certainly for the view that delivery in parallel circumstances is not merely a relevant circumstance but an important one, and further (b)that in such circumstances, with delivery proved, a universal settlement will not have the effect of displacing such bequests, but also (c) it may be read as going farther and laying down for good that a general clause of revocation (as indeed Lord Jamieson and I think) will not suffice, and that to get rid of delivered deeds of this description there must be two things, first a revocation expressly directed to them by nomenclature or sufficient identification, and also a very clear expression of the testator's mind that these are to be swept into his general estate. The case is later than and of superior authority to Miller v. Dickson : but it is just thinkable that they could be explained as consistent if we could discover the full circumstances of Miller.

The whole rapid review, then, comes to this, that there are running side by side two trends of authority so far as principle is concerned, the latter trend (if anything) being favoured by the general concession offered after considerable debate by eminent counsel, and by opinions expressed judicially in the present century. I shall venture to add two things, although these considerations again were not touched upon by the debate. In my judgment the intermediate set of decisions by our Courts to follow an English authority's leading, and to sustain as enforceable an obligation to grant or leave a bequest at one's death, may now have much to say to the strength of the supposed general principle. Lastly, it may well be, if pursued to a finish, that these three decisions which rest in part upon a prior obligation of the granter, proved by parole evidence, themselves go far to displace any idea that may lie at the root of Miller v. Dickson . These prior obligations, upon which the delivered deeds, themselves deeds of mere bequest, followed, would probably in each of the cases have been absolutely inoperative, had they not been followed by delivery of the instrument of bequest.

While, then, not called on to proffer any concluded opinion, I am clear that I cannot meantime assent to the generality that in the matter of all mortis causa provisions, full delivery made by the framer of the deed to the specific legatee named in the deed is an irrelevant circumstance, is "neither here nor there," as it is popularly put. Here also, my preference would be to think that all these cases and dicta taken together indicate as a whole that it is always a quœstio voluntatis, and that much will turn on the other question quo animo the purported delivery took place. In the light of your Lordship's counter opinion I must, and do, put this both cautiously and respectfully.

LORD JAMIESON .—The holograph writing of 4th July 1937 by which the late Dr Clark bequeathed his collection of postage stamps to the reclaimer, Mr MacKnight, was of a purely testamentary nature. It bears that the bequest is made "in the event of my death." It was sent by Dr Clark to Mr MacKnight by post, and the first argument submitted on the latter's behalf was that by delivery it had become irrevocable.

The argument was based on three passages in M'Laren on Wills and Succession, and certain observations thereon in the case of M'Lachlan v. Seton's Trustees, and as the question of the effect of delivery of a testamentary writing during the granter's lifetime is of some importance, and the passages in M'Laren have, I think, been misunderstood, I propose to examine them.

(1) In vol. i, sec. 752, he says "The granter of a will or settlement is entitled to revoke or alter its dispositions so long as the instrument and the estate conveyed by it remain subject to his control, which in general will be the case while the instrument is undelivered." Then, after saying that up to the last moment of life a voluntary settlement of the granter's estate is held to be ambulatory and revocable, if it has not previously been delivered to the grantee, he goes on, (2), in sec. 753:

"Delivery, it may be affirmed, will not constitute a bar to the revocation of a settlement which reserves the granter's liferent, unless a beneficial and indefeasible right is conferred by the settlement on a person in existence at the time of delivery,"

and (3) in sec. 754 he says:

"The delivery of a deed to a beneficiary interested in its provisions, or to trustees for his benefit, deprives the granter of the power of revocation so far as that beneficiary is concerned, if a power to revoke be not reserved."

In reading these passages it is well to keep in view that they occur in a section of the chapter on "Power to Revoke" dealing with "unilateral instruments," and that, as the learned author himself points out in the preface, the scope of his work comprehends "the whole subject of succession, testate and intestate," including rights under marriage settlements and deeds of entail and provision. The section does not deal merely with wills. It becomes necessary, therefore, to ascertain whether any proposition is intended to be applicable to testamentary deeds or to settlements of a different nature—a distinction which the author does not always make clear—or whether both kinds of deeds are intended to come within its ambit.

I can dismiss the third proposition in a word as having no application to testamentary deeds. The side note bears that it is applicable to deeds inter vivos, and the case quoted by Lord M'Laren, out of what he calls a series of decisions, as vouching it, viz.:—Turnbulls v. Tawse, was one in which a lady had delivered to trustees a disposition of heritable subjects, the trust purposes being for the payment of debts, a liferent to the granter and her husband, and on the death of the longest liver for conveyance to her children nominatim. On that disposition the trustees had taken infeftment. Similarly in sec. 753 I think Lord M'Laren was enunciating a proposition applicable to settlements intended to take effect during the granter's lifetime, although also containing provisions which would only become operative after his death. All the examples he gives were such, and in each case the deed, although delivered, was held to be revocable in respect it did not confer any indefeasible right on a person in existence at the time of delivery. The proposition was, however, prayed in aid in the case of a codicil to a will by the Lord Ordinary (Lord Russell) in M'Lachlan v. Seton's Trustees . In that case a lady had come under an onerous obligation to leave a legacy of £6000. This she did by a codicil to her then existing will, and she delivered the codicil to the legatees. She afterwards executed a series of wills, each containing a general clause of revocation, but repeating the bequest in substantially the same terms. The question for decision was whether the bequests in the codicil and in her last will were cumulative or whether that in her will was in substitution of the former. The latter was held to be the case. Lord Russell, after quoting the first and second of Lord M'Laren's propositions, expressed the view that the legatees' right to the bequest was indefeasible and that the codicil was irrevocable, holding however that the bequests were not cumulative. The Division adhered, the majority holding that while the bequest was irrevocable the testatrix was entitled to revoke the codicil and repeat the bequest in a new instrument. In arguing the present case stress was laid on an admission by the Dean of Faculty that in view of the fact of delivery he did not maintain that the testatrix was entitled to go back upon the binding obligation she had entered into, but the decision would, I think, have been the same, even if the codicil had not been delivered. It was the obligation to leave the legacy which made the bequest irrevocable, not the delivery of the codicil, and this is in accordance with the case of Paterson to which Lord Russell referred. Lord Mackay dissented and held that the delivery of the codicil was the crucial fact in the case. He did, however, regard the codicil as conferring de prœsenti a beneficial and indefeasible right on the legatees. He referred to all three of Lord M'Laren's propositions, and as regards the first he read it as meaning that the revocable and ambulatory nature of the deed depended on both the estate conveyed and the instrument being subject to the control of the granter. Adopting this construction of Lord M'Laren's statement, and taking it out of its context, junior counsel for the reclaimer in his very clear argument submitted the proposition that as a general rule delivery of any deed, including a testamentary writing, will confer on it the quality of irrevocability.

Now Lord M'Laren's first proposition, if read strictly, appears to me to be unexceptionable, though not exhaustive, but I do not think he intended that the converse was to be read into it. It is to be noted that it deals both with "wills" and "settlements," and, if settlements are to be taken in the sense in which he employs the term in his later propositions, subject to the qualifications there laid down, the converse would apply to them. But to say that it applies to voluntary deeds of a purely testamentary nature would be going contrary to a well established line of authority. In Leckie v. Leckie, the granter of a deed disposing a heritable subject, reserving his own liferent, and assigning all his moveables at his death, registered the deed. He subsequently executed another deed by which he disponed the heritage and all his moveables to other parties. It was held that registration of the deed was equivalent to delivery, and that quoad the heritage, the earlier deed had not been revoked by the later, but that as regards the moveables it had. The distinction is of some importance. The law prior to 1868 required that even in a deed intended to operate on death heritage could only be transferred by words of de prœsenti conveyance. Such a deed, if delivered during the granter's lifetime, conferred an immediate right on the grantee, but a mortis causa bequest of moveables did not have that effect. The distinction arose again in the case of Sommerville v. Sommerville . The granter of the deed in that case, under reservation of his own liferent, conveyed to his daughter and her husband in liferent and to their son and a series of substitutes his whole heritable and moveable estate, and in particular without prejudice to the said generality certain named lands. The deed, which was delivered, contained a procuratory of resignation and a precept of sasine. The granter subsequently executed another settlement of the said lands and his effects in favour of another party who obtained a charter from the superior and took infeftment. It was admitted that a testament of moveables, although delivered, was revocable, and the dispute arose regarding the heritage. The Court held that the first deed was revocable upon the ground that, from its whole construction, it was a mortis causa settlement, comprehending the lands as part of the arrangement, and distinguishing the case of Leckie, in which there was a special independent conveyance of the heritage. In Miller v. Dickson a mortis causa assignation of the granter's whole moveable estate delivered to the grantee was held to be revocable.

The decisions in Sommerville and Miller v. Dickson were accepted by Ivory and Nicolson in their editions of Erskine for the proposition that the power of revocation exists in all mortis causa settlements although actually delivered to the grantee. In Miller v. Milne's Trustees, Lord Neaves at p. 390 said:

"It is certain that a mortis causa deed is in general revocable, though communicated and delivered,"

and he referred to the cases in Ivory's note at III, ix, 5. In Paterson, Lord Kincairney said "I agree that it is settled that … a mortis causa deed will not be protected or rendered irrevocable by delivery," and he cites Sommerville and Miller v. Dickson . To the same effect is the editor of the last edition of Bell's Principles (section 1866). Menzies states the law thus:

"A testament … takes effect only at the testator's death; and as it is held to express his mind as at his death, so he may revoke it at any time before that event; and so strong is this principle, that the right of revocation continues, even though it may have been renounced."

Then he adds:

"Nor does delivery bar the power to revoke,"

and refers to Miller v. Dickson .

It was argued, however, that the rule only applied in the case of testamentary writings dealing with the universitas of the granter's estate, and that bequests of legacies, and more particularly legacies of specific subjects, formed exceptions to it. The case of Trotter v. Trotter was one in which a pecuniary legacy contained in a delivered document was held to be revocable, and in Miller v. Milne's Trustees the passage which I have quoted from Lord Neaves occurred in the course of an opinion with reference to a gift of a sum of money which in his view fell to be regarded as a form of legacy, or donation mortis causa, but which it was held had lapsed by the death of the legatee. I can see no reason for differentiating a legacy of a specific subject. We were referred to no authority making such a distinction, and on principle there is no room for applying a different rule to a gift of a person's whole estate and a bequest of a specific subject out of it.

The result of the authorities, therefore, is, in my view, to establish that as a general rule delivery of a writing, purely testamentary and executed voluntarily, does not bar revocation, and that whether the writing disposes of the granter's whole estate or only part thereof. Different considerations may arise when the element of contract enters into the matter, as in the case of mutual wills, or where the writing has been executed in implement of a binding obligation, at least of an onerous nature. But that is not the case here.

The second question is whether, the testamentary writing of 4th July 1937 being revocable, it was in fact revoked by the testator by his will dated 9th August 1939. It was argued for the testator's heir that revocation had been effected by the bequest therein of his whole estate, heritable and moveable, and also by the cancellation of all wills previously executed by him. As a general rule a later settlement of the universitas of the granter's estate will be held impliedly to revoke the provisions of an earlier settlement on the ground that the two deeds are inconsistent and cannot stand together. But there is no presumption that a general disposition revokes a former bequest of a specific subject. Indeed, the passages from Montgomerie Bell and Erskine to which Lord Mackay has referred show that the opposite is the case, and in Dick's Trustees Lord M'Laren referred to bequests of specific articles as forming a possible exception to the general rule. The question is what was intended by the testator. In the present case Dr Clark did not by his will make a gift of his whole estate. He calls it such. Possessing at his death his collection of guineas and coins, his collection of stamps, and estate, apart from these, valued at something over £8,000, he began by bequeathing his "whole estate," but immediately proceeded to detract from that bequest by excluding from it his collection of guineas and coins, which he dealt with otherwise. It is clear, therefore, that in using the expression "whole estate heritable and moveable," he did not use it in its ordinary meaning, and did not intend it to include that part of his moveable estate which consisted of the guineas and the coins. What, then, was his intention? For it is his intention, gathered from the language of his whole writings, which must, if possible, be given effect to. Did he mean by "whole estate" everything except the guineas and the coins, including the stamp collection, or merely his estate, apart from his collections, consisting of money or investments? Three considerations point strongly to the latter. In the first place, the purpose of the gift to the "Pathologist Society" is such as would only be accomplished by means of the income accruing from invested funds or by encroaching on the capital thereof; and the will contains no directions regarding the realisation of his stamp collection which two years previously he had, no doubt with undue optimism, valued at several thousand pounds. Secondly, the appointment of his executor, instead of coming at the beginning of the will, or, as is frequently the case in short wills, such as this, at the end, follows immediately after the bequest to the "Pathologist Society" and before that to the Antiquarian Museum. That, I think, points to the intention in the mind of the testator having been that he was appointing an executor to ingather the estate so far as consisting of investments or monies in bank; and the authorisation of the executor to make the usualcharges is a pointer in the same direction. Thirdly, the fact that the writing of July 1937 had been delivered to Mr MacKnight is of importance in determining whether it was Dr Clark's intention to revoke the bequest. In Kenmore's Trustees, testamentary writings delivered by a husband to his wife leaving her legacies of bank stock, the first in repayment of a loan, but the second purely voluntary, were held not to have been revoked by a subsequent trust-disposition and settlement of his whole estate executed by the husband. Lord President Inglis, with whom the other judges concurred, founded on the absence of any express revocation of the writings in the later deed and on the fact that they had been delivered. Further, the terms of the writing in the present case show that, altogether apart from his possibly exaggerated view of its monetary value, his collection of stamps had for Dr Clark a pretium affectionis, and I am quite unable to think that he intended that a collection to which he attached such value was meant to be included in the gift to the "Pathologist Society." On the contrary, the fact that the writing bequeathing it to his old friend Mr MacKnight was delivered and the absence of any reference to it in the will are indications of an intention to exclude it, as in the case of the guineas and coins, from what he erroneously described as his "whole estate" and to an understanding on his part that the bequest would take effect.

These considerations are also of importance in determining the question whether that bequest was revoked by the cancellation of all wills previously executed by the testator. If I am right in thinking that the testator did not intend the stamp collection to be included in the gift to the "Pathologist Society" and the bequest to Mr MacKnight was revoked, the result would be that the collection would fall into intestacy. But I prefer to base my judgment on a different ground. Again the question is one of intention, but it is of significance that the term used is "wills" and not the more usual one of "testamentary writings" or "wills and testamentary writings." It may be that, in certain circumstances, a man's "will" may be referred to as embracing all his testamentary writings. But the testamentary writing of July 1937, standing alone, could never, in my view, be properly described as a "will," and we were informed that the testator had executed previous wills, although counsel on neither side of the bar were able to inform us of their dates or contents. Keeping in view what I have said in the considerations I have referred to above and particularly the third, I think it was to these prior wills that the cancellation was meant to refer, and not to the gift of the stamp collection. In his speech in Stoddart v. Grant, Lord Truro said:

"I think it would tend very much to diminish the power of testators over their property, if you were to hold that slight or equivocal expressions found in a subsequent instrument would justify the conclusion that previous documents, otherwise entitled to probate, were to be regarded as revoked."

In the present case the expression used by Dr Clark I regard as equivocal, and there is nothing inconsistent in both documents being held to contain his testamentary directions.

The question is a difficult and narrow one. The duty of the Court is to ascertain the intention of the testator as evinced from the language he has used, and to some extent the matter is one of impression. But, in reaching the conclusion, on the particular facts which the case presents, that it was not Dr Clark's intention to revoke his writing of July 1937, I do not think I am doing any violation to the language he has used.