Scottish Court of Session Decisions

LORD GUTHRIE'S OPINION.—The pursuer in this action of proving of the tenor is a building contractor in Peebles, and he formerly carried on business in partnership with his uncle, the late George Clyde, who died without issue on 29th August 1955. The pursuer concludes for declarator that the deceased George Clyde made a will in the terms set forth in the conclusions of the summons, whereby he bequeathed to the pursuer his whole estate, heritable and moveable, and appointed the pursuer his sole executor. Four brothers of the deceased, the children of his predeceasing sister, and the children of two predeceasing brothers are called as defenders, and it is said that the defenders, along with the pursuer, are the whole heirs ab intestato of the deceased. Only the first-called defender, the deceased's brother Hugh Clyde, has lodged defences. He has been confirmed as an executor dative of the deceased.

In his defences the defender stated that the defenders called were not the whole heirs ab intestato of the deceased, and that all the children of his late brother James Clyde had not been called. A plea of "all parties not called" stated by the defender was deleted at adjustment. When the case was called in the Debate Roll it was stated that a son of James Clyde resided with the sixth defenders at 640 East Armour Boulevard, Kansas City, Missouri, U.S.A. No explanation was given as to why the summons had not been served upon him after the pursuer's advisers were informed of the existence of another interested party. In the circumstances I allowed the hearing to proceed, but intimated that I would not decide the matters debated before me until service had been effected upon the absent party and he had been given an opportunity to lodge defences, if so advised. Service has now been made and no defences have been lodged, and accordingly I am able to deal with the matters discussed in Debate Roll.

The pursuer avers that the deceased was a partner with the pursuer's father Andrew Clyde in the firm of James Clyde & Sons, building contractors, Peebles, until the death of Andrew Clyde on 29th November 1932. In March 1933 the pursuer was assumed as a partner with effect from the date of his father's death. On 7th October 1936 the deceased, it is averred, executed a will in the terms set forth in the first conclusion of the summons, and handed it to his solicitor for safe custody. In 1948 the principal will was returned to him by his former solicitor's firm at his own request. The deceased for some years before his death lived in lodgings where he kept his personal papers in a chest. After his death the first-called defender removed the chest to his own home. A week later he informed his own solicitors that he had found among the deceased's papers two copies of the deceased's will and an envelope bearing on one side the typewritten words "Copy of Will George Clyde." Despite intensive search and inquiry the will has not been found. So far as is known, the deceased left no other testamentary writing.

The pursuer then avers that the deceased did not revoke or deliberately destroy the will. Until his death the deceased was on very friendly terms with the pursuer, and, after the pursuer's return from war service in 1946, increasingly entrusted the management of the firm to the pursuer, who had the entire management of it for the last six years of his uncle's life. By the pursuer's efforts the financial position of the firm greatly improved with considerable financial benefit to the deceased, who was entitled to three quarters of the annual profits, and whose share in the capital at his death amounted to about £16,900, an increase of £14,000 since 1946. The deceased's share of the capital was the principal item of his estate. The pursuer avers that he was on excellent terms with his uncle until the latter died, and that the deceased was grateful to him for his successful management. In token of his regard for the pursuer he made him a present in 1946 of the house in which the pursuer now lives. The pursuer frequently visited him. On the other hand he was not on very intimate terms with other relatives, and, in particular, was estranged from the defender. The pursuer states that at no time did the deceased give any indication that he had altered the intention which he had manifested in 1936 of benefiting the pursuer after his death, and in particular of bequeathing to the pursuer his interest in the firm. In these circumstances the pursuer believes and avers that the deceased's will was accidentally lost or destroyed otherwise than by the deliberate act of the deceased at some time after 1948.

The defender has pleaded that the pursuer's averments are irrelevant and lacking in specification, and that the action should be dismissed. Counsel for the defender moved me to sustain that plea.

It is settled law that the pursuer in an action of proving of the tenor must aver and prove a casus amissionis of the document, but the sufficiency of the casus varies according to the nature and purpose of the writ whose tenor is to be proved. In the case of a testamentary document the law is set forth in the opinion of the consulted Judges in Winchester v. Smith, (1863) 1 Macph. 685, at p. 689. Lord President McNeill and Lord Curriehill and Lord Ardmillan said that the phrase "casus amissionis" "means not only that the writing has been actually destroyed or lost, but that its destruction or loss took place in such a manner as implied no extinction of the right of which it was the evident." They went on to distinguish various classes of cases in these terms:—

"Such casus amissionis requires to be supported by much stronger evidence in some cases than in others. For example, if the writing be a disposition of land, of which the tenor is satisfactorily established, and which was followed by infeftment and long and uninterrupted possession, and the instrument of sasine on which is produced, a comparatively slight proof of the casus amissionis may be sufficient. But if it be such a writing as is usually cancelled or destroyed when it has served its purpose—as, for example, a bill of exchange or promissory note, or a personal bond; and if it has been destroyed, or has been found in the hands or in the repositories of the granter actually cancelled, the presumption is that the right of which it had originally been the evident no longer subsists; and very clear evidence is requisite to overcome the presumption. The same is the case when the right, of which the cancelled or destroyed writing, if it were effectual, would be the evident, is a revocable one; because such cancellation or destruction is itself an effectual mode of executing a power of revocation; and when such a writing has actually been destroyed, or has been found cancelled, in the hands, or in the repositories, of the granter after his death, the presumption is that such destruction or cancellation took place in the exercise of his power of revocation, and that presumption can be obviated only by very clear evidence to the contrary. In order, therefore, to judge of the sufficiency of the evidence of the casus amissionis of a writing in an action of proving the tenor, the nature of the writing must be carefully attended to."

In Bonthrone v. Ireland, (1883) 10 R. 779, the daughter of the deceased person, who was his heir at law, averred in defence of an action of proving of the tenor of a trust-disposition and settlement, which had admittedly been executed, that the deed had been given to her by her father to be destroyed and that she had destroyed it before his death. After a proof, it was held that the explanation of the daughter, who was corroborated, was proved, and that the deed had been destroyed by her on her father's authority, and had thus been validly cancelled. Lord Young said this (at p. 790):

"It is admitted that the deceased John Bonthrone on 26th September 1868 duly executed a trust-disposition and settlement of the tenor libelled, and that he had it in his custody for many years, and that on his death in October 1881 it was not forthcoming. So far the case is clear in point of fact, and if there were no more in the case—that is, if we had no further information about the deed—I apprehend that the law would be clear also. For as a man may effectually cancel or revoke his will by destroying it, when it is shown that a man duly executed a will and had it at one time in his custody, and it is not forthcoming at his death, the legal presumption, in the absence of evidence to the contrary, is that he destroyed it animo revocandi. This, indeed, is only to presume, in the absence of anything to the contrary, that what may have happened lawfully (the disappearance of the will) did so happen, and to decline without evidence to attribute it to any tortious act. If the law were otherwise, a man plainly could not cancel his will by merely destroying it, or otherwise than by a written revocation—at least if there were available means of proving its contents."

In that state of the law the question for decision in the present action at this stage is whether the facts averred by the pursuer are such that, if established by evidence, they would be sufficient to overcome the presumption that the deed, which is not said to have left the custody of the deceased before his death, was destroyed by him animo revocandi. In my opinion, the pursuer's averments are insufficient to enable such a conclusion to be drawn and are accordingly irrelevant.

The effect of the averments is this: that the deceased obtained the return of his will from his solicitor in 1948 and that it is not known to have left his custody thereafter. It is not averred that it was wilfully or accidentally destroyed by the first defender or anyone else after the death of the deceased, or that it was lost thereafter. The pursuer's averments show that he had rendered great assistance to and conferred financial benefit upon the deceased by his successful management of the firm's business, and that he was on excellent terms with the deceased, who was grateful to him and bought him a house in 1946. He also states that the relations between the deceased and the other members of the family were, to say the least, not so cordial as his relations with the pursuer. But even if these averments were fully established at a proof I do not think that they would entitle the pursuer to succeed. The benevolence of the deceased towards the pursuer is insufficient to overcome the presumption that this deed, which was in the custody of the deceased and was not forthcoming at his death, was destroyed by him animo revocandi. The case is covered by the statement of the law by Lord Young in Bonthrone v. Ireland .

Counsel for the pursuer founded upon two cases—Brodie v. Brodie, (1901) 4 F. 132, and Young v. Anderson, (1904) 7 F. 128. Both these cases are, in my opinion, clearly distinguishable from the present. In Brodie the defender had granted a bond of annuity for £100 in favour of his father and mother and the survivor. After the death of the mother, the defender, in answer to a demand by his father for the half-yearly payment, wrote declining further payment on the ground that the father had destroyed the bond with the intention of extinguishing the obligation. This was denied by the father, and, after some years in which no further payments were made, the father brought an action against the son for proving of the tenor of the bond, averring that it had been abstracted from a drawer containing his papers, or, at all events, had gone amissing and was irrecoverably lost. The son repeated the assertion that his father had destroyed the bond with the intention of extinguishing the obligation. After proof it was held that the father had proved a sufficient casus amissionis. It is clear that the circumstances are entirely different from those in the present case, which is concerned with a testamentary deed, in which there is no averment of wrongful abstraction or destruction of the will, and in which the evidence of the custodier of the deed is not available to explain its disappearance. Counsel for the pursuer relied on a dictum in the dissenting opinion of Lord Moncreiff (at p. 142) in these terms:—

"The presumption, however, is slight, and may be overcome by proving that the creditor in the deed had no motive and no intention to discharge his right."

In the previous sentence Lord Moncreiff made it clear that he was dealing with a document, containing a unilateral obligation, in the hands of the creditor. In the case of a will which is not forthcoming, the presumption is not slight, and averments that a deceased person was kindly disposed towards the pursuer and had reason to be grateful to him are insufficient to overcome the presumption. In Young v. Anderson the circumstances were entirely special. A settlement was executed on the day of the death of the granter on 13th November 1848. The original deed went astray but the estate was administered in accordance with the terms of the deed for nearly fifty-five years. After the death of the deceased's law agent in 1872, some of the papers in his possession were uplifted by clients and others were removed to the chambers of another law agent. In 1903, when the heir at law, who had acquiesced in the administration of the estate, discovered that no will could be found, he contended that the settlement must be held to have been destroyed by the granter animo revocandi. But it was held in an action of proving the tenor that a sufficient casus amissionis had been proved. Counsel for the pursuer founded upon a passage in the opinion of Lord M'Laren (at p. 135) in these terms:—

"I do not agree with the argument that was addressed to us—that it must be presumed that the will was revoked, unless it is proved that it was not revoked. That is a very extraordinary negative for anyone to be called on to prove, and I should doubt if it were possible to establish such a negative by proof."

But that passage must be read in the light of the circumstances of the case. From Lord Adam's opinion (at p. 134) it is clear that the Court held that a will in the terms libelled was in existence after the testator's death, and in these circumstances it was said that no great proof of the casus amissionis was required. In the present case, by contrast, there is no averment that the will was in existence at the time of the death of the deceased, and accordingly the presumption, as stated by Lord Young, must apply. As the circumstances founded upon by the pursuer are insufficient to displace that presumption, there is no purpose to be served by putting the parties to the expense of a proof.

On the whole matter, I shall sustain the first plea in law for the defender, and dismiss the action.