Scottish Court of Session Decisions

LORD PRESIDENT (Clyde).—This is a multiplepoinding concerning the validity of a document signed by the late Mrs Baird. She died on 6th August 1950, leaving a formal trust-disposition and settlement and codicil disposing of her whole estate. But in her repositories after her death the document in question was found. It bears a date subsequent to her trust-disposition and settlement. It consists of a single sheet of paper, and is an order form for withdrawing money from the Savings Bank of Glasgow, where the deceased had a depositor's savings account with a credit balance of £1666, 19s. 4d. at the date of her death. One side of the form is partly printed and partly handwritten, and I refer to the photostatic copy of the document, with which we were supplied, for its precise terms. The testatrix's signature is written on this form at the bottom, all the remainder of the handwritten parts being in the handwriting of her daughter Janie, who is one of the claimants in the present action. On the other side of the form appear the signature of the testatrix and the names and addresses of two witnesses to that signature, together with the date 21st March 1947, which coincides with the date on the first mentioned side of the form.

Two main issues arise, firstly whether the document is duly authenticated, and secondly whether it has testamentary effect. The Lord Ordinary only found it necessary to deal with the first of these two issues. He treated the document as a deed written bookwise, and therefore falling within the provisions of the Act 1696, cap. 15. He found that this statute, in authorising deeds to be written bookwise, plainly required that the granter and witnesses should subscribe at the end of the last page on which the deed is written, and not on a blank page which forms the reverse of the last page on which the deed is written. He therefore held that the deed was not properly authenticated.

When the case was argued before the Lord Ordinary, it does not appear to have been maintained that the 1696 statute did not apply to a single sheet. But the decisions in Smith v. Bank of Scotland and M'Crummen's Trustees v. Edinburgh and Glasgow Bank appear to me to establish that this statute cannot apply to the present document, which consists only of a single sheet. The ground of judgment of the Lord Ordinary therefore cannot stand. In the latter of these two cases Lord Wensleydale (at p. 431) makes it clear that the Act in question applies where two leaves are used, and that it does not apply where there is only a single sheet. It is necessary therefore to consider this question apart altogether from the statute of 1696.

By the law of Scotland a writing which is to be effective must be authenticated as the deed of the granter. If the deed is holograph and signed by the granter, it will be thereby authenticated. But if it is not holograph—and the present deed is not—then, to be authenticated, it must comply with various requisites laid down by statute. As Duff (Feudal Rights, p. 3) says:

"The mode of attesting or authenticating deeds consists in the solemnities introduced by statute."

As Lord Dunedin said in Walker v. Whitwell (at p. 79):

"A deed without the requisite solemnities is not an authenticated deed,"

and he quoted Bankton (vol. i, p. 330) to the following effect:

"Writings require certain solemnities or formalities without which they are null."

The importance of maintaining and enforcing these statutory solemnities has more than once been stressed in the decided cases. For instance in Walker v. Whitwell Earl Loreburn said (at p. 77):

"The opportunity for fraud is so great, the temptations of self-interest are so liable to distort even an honest recollection, and the hardship so manifest if a man's fortune is disposed of by loose proof, that it has been judged necessary to insist npon certain precautions, or a choice of certain precautions. It is quite true that a neglect, perhaps only accidental or springing from ignorance … may frustrate a perfectly honest will, and thus cause the very mischief which these precautions were intended to avert. That risk is inevitable and must have been foreseen. But it is held better that a few instances of that kind should occur, rather than admit the flood of uncertainty which would follow if the simple rules be relaxed."

It is necessary therefore in the present case to consider carefully whether there has been compliance with the necessary statutory solemnities.

In early times authentication was effected by sealing the deed, but by the Act 1540, cap. 117, subscription by the granter was substituted for sealing. As Menzies (Conveyancing, Sturrock's ed., p. 83) says:

"This statute is the foundation of the present system of executing deeds, its grand feature being that, in place of the previous unsatisfactory practice of sealing, it required the subscription of the party either by his own hand, or, if he could not write, by the hand of a notary. It was defective, however, inasmuch as, while witnesses were required to the subscription of the party, there was no injunction that the witnesses themselves should subscribe."

This defect in regard to witnesses was remedied by the Act 1681, cap. 5—an Act which is described in Menzies (at p. 85) as "containing the final provisions of the law for securing the authenticity of deeds." This Act provided that "only subscribing witnesses in writs to be subscribed by any partie hereafter shall be probative."

The deeds and writs in use when these statutes were passed were in roll form, and, when one sheet of paper was not sufficient, it was lengthened by pasting another upon its lower end. The introduction of writs in book form was a later development, and special provision was made in the statute of 1696 to deal with the proper authentication of such writs. As already indicated, this Act does not apply to the present case, but it did require that the granter and his witnesses should subscribe at the end of the last page on which the deed was written, not on a blank page following that page. It would be strange indeed if, in the case of non-book-form deeds, a laxer rule obtained.

The statutory requirement in non-book-form writs (such as the present) is subscription by the granter and by the witnesses. In this case there is a subscription by the granter on the partly printed and partly written page of the writ, but no subscription by witnesses. That signature by the granter will not avail to authenticate the writ, although prima facie it appears to be at the conclusion of the writ, for it is not accompanied by any subscription by witnesses. The attested signature on the other side is in no way connected up with the body of the writ on the first side, and is not in fact a subscription at all. It is a writing on the opposite side of the paper. Subscription must be something written underneath the concluding part of the deed, not something above it or beside it or behind it. The signatures of the granter and her witnesses therefore fail, in my view, to satisfy the statutory solemnity of proper subscription.

Had the document run on from one page to the other with a witnessed signature at the end, that might have been enough to constitute the witnessed signature a subscription—M'Laren v. Menzies . Alternatively, if at foot of one page there had been something (e.g., the letters p.t.o.) to constitute a clear link between that page and the witnessed signature on the other side—Russell's Executor v. Duke, per Lord Keith at p. 243—then the difficulty might have been resolved. But nothing of this kind is present in this case, and, therefore, in my opinion, subscription by the granter and her witnesses is not established.

It was suggested that any defects in the subscription of this document could be remedied by the leading of evidence regarding the circumstances under the provisions of section 39 of the Conveyancing (Scotland) Act, 1874. But, in my opinion, no evidence is admissible to cure as radical a defect as this—Foley v. Costello, per Lord Moncreiff at p. 371. Indeed, it would be a dangerous precedent were we to sanction the adoption of such a procedure for this purpose.

I turn now to the final question in the case—Whether the document, even if properly authenticated, could have testamentary effect. It is addressed to the Savings Bank of Glasgow by the testatrix. It instructs the bank to pay the bearer all the money in her two savings bank books as a gift to her daughter on the day of her death. The document was not delivered to anyone prior to her death, and on her death it lapsed. There was clearly no de presenti gift, either inter vivos or mortis causa, and validity for it can only be claimed on the view that it operates as a testamentary bequest. But on her death the order lapsed, and at the moment at which it could operate as a testament it ceased to be effectual. In my view, therefore, it constitutes an

invalid attempt to use a mercantile document as a means of granting a bequest, and the testatrix's trustees are not bound by its terms.

On the whole matter I move your Lordships to affirm the interlocutor of the Lord Ordinary.

LORD CARMONT .—I agree with the opinion of your Lordship.

LORD RUSSELL .—I have had an opportunity of considering your Lordship's opinion and am in complete agreement with it, and cannot usefully add anything.

LORD SORN .—When this case was before the Lord Ordinary it would appear to have been presented to him on the view that it fell under the Act of 1696, which deals with deeds written bookwise. In the argument presented to us the reclaimer submitted that that Act did not apply to deeds written on one sheet, and the correctness of that submission would appear to be established by a number of decisions, none of which were cited to the Lord Ordinary—Williamson v. Williamson; Robertson v. Ker; M'Donald v. M'Donald; Smith v. Bank of Scotland; M'Crummen's Trustees v. Edinburgh and Glasgow Bank . The respondents, while not conceding the point, presented no argument to the contrary. Notwithstanding the inapplicability of the Act of 1696, it seems to me that the ratio of the Lord Ordinary's judgment is not affected and that his decision should be affirmed.

I think the true question in the case is whether the attested signature of the testatrix can be treated as a subscription of the deed. The signatures of the two witnesses constitute a good attestation of the testatrix's signature on the reverse side of the form, and the only question is whether that signature is a subscription to what appears on the front side of the form. The relevant statute is the Act of 1540, which, inter alia, made subscription by the granter a necessary solemnity (later statutes making it clear that this meant an attested subscription), and the only question is whether this deed is so subscribed. I have not been able to persuade myself that, although the deed is written all on one sheet, the mere presence anywhere on that sheet of the attested signature of the granter constitutes subscription. The natural place for the granter's subscription is beneath the writing, and I think it must be placed there, or, if it is not, that there must be something to link it with the writing in such a way as to make it equivalent to a signature so placed. In the present case the sheet of paper is not paged, and we simply find the writing on one side and the attested signature on the other. There is nothing on the side with the writing to direct the reader to continue to the reverse side and there is nothing on the reverse side to indicate that the signature is a pendant of the writing. It was argued to us that we should consider the probabilities from the point of view of the reasonable man and ask our-selves whether there could be any real doubt that the testatrix had intended the signature to be a subscription, but I doubt whether in a question of solemnities it is open to us to do this. I think the signature must proclaim itself to be a subscription and that it must do so upon the face of the deed itself. Counsel sought to assimilate the situation here to the situation that might arise where a deed was written upon a single sheet folded so as to form pages. Suppose the writing extended to the very bottom of one page—Was it to be supposed that the signature which followed was not a subscription because it appeared on the next page, which was otherwise blank? I am not going to express an opinion about that situation, because it seems enough to say that I regard that as a different situation. It might be thought, in such a case, that the link between the signature and the end of the writing was patent from the folding of the paper, or from the paging, or from something else, but in the present case I find myself unable to say that this is so. It was also suggested that, where the deed was written on one sheet, the solemnity of subscription was satisfied if there was an attested signature somewhere on the sheet. I think it is possible to find instances, both in the Acts and in judicial opinions, where the word "subscribed" is used to mean no more than "signed," but in interpreting the Act of 1540 I think the word cannot be given anything except its proper meaning, i.e., signed at the end of the deed. This view is supported by the opinions expressed in M'Laren v. Menzies —see Lord Deas at p. 1157, Lord Mure at p. 1165, Lord Gifford at p. 1167, and the Lord Justice-Clerk at p. 1175. I have not so far referred to the fact that the signature of the testatrix also appears on the side of the sheet with the writings on it and at the foot of those writings. In my opinion, this signature has no bearing on the matter at all. The signature of the witnesses manifestly relate to the other signature on the other side, and this signature, being unattested, is nothing. It follows, in my opinion, that in the absence of subscription by the granter the document before us is not a validly executed testamentary writing.

A further question was raised whether, in the event of the Court coming to the above conclusion, it was open to the reclaimer to avail herself of section 39 of the Conveyancing (Scotland) Act, 1874, with a view to having the absence of subscription treated as an informality of execution within the meaning of that section. The section is not invoked in the pleadings of the case, and it is perhaps doubtful whether we should express an opinion upon a matter not raised in the pleadings and not dealt with by the Lord Ordinary. The sum at stake, however, is not a large one, and, having heard argument on the point, it seems to me desirable that we should express our opinion. I do not think that section 39 is open to the reclaimer. The essential prerequisite for applying its provisions is that the deed should be subscribed by the granter or maker thereof and should be attested by two witnesses subscribing. This means that, so far as subscription by the granter is concerned, the solemnities of the existing law must be complied with. Since we have held that this is not so, there is no foundation for applying the section.

Having held that the document is not validly executed, it is unnecessary to decide the question whether, had it been validly executed, it could have been given effect as a legacy to Miss Baird of the savings bank money. I will say, however, that it seems extremely doubtful whether it could have been given this effect. Mrs Baird's purpose plainly was that the bank should pay the money directly to Miss Baird on her death. The mandate fell on her death and this purpose came to nothing. I find it difficult to see how this writing, addressed to the bank, could be treated as a testamentary direction to the executors. In her trust-disposition, dated before the signing of the withdrawal form, and in her codicil, dated after it, Mrs Baird had expressed her testamentary wishes in the usual form of directions to her executors, and this seems to emphasise the non-testamentary character of the attempted transfer of the bank money to Miss Baird. In these circumstances, the attempt having failed, it would seem difficult to treat the writing as being equivalent to a direction to the executors to pay the money over.