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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bruce's Judicial Factor v Lord Advocate [1969] ScotCS CSIH_2 (19 June 1969)
URL: http://www.bailii.org/scot/cases/ScotCS/1969/1969_SC_296.html
Cite as: [1969] ScotCS CSIH_2, 1969 SLT 337, 1969 SC 296
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19 June 1969
| Bruce's Judicial Factor |
| v. |
| Lord Advocate |
In these circumstances I think that the law presumes that the 1949 settlement was destroyed by the deceased before his death animo revocandi (Dickson on Evidence, vol. i, para. 114). In Bonthrone v. Ireland, (1883) 10 R. 779, Lord Young said (at p. 790):
"For as a man may effectively cancel or revoke his will by destroying it, when it is shewn 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 by a written revocation—at least if there were available means of proving its contents."
In the absence of any attempt to set up the 1949 settlement by proof of the casus amissionis,there is no evidence in my opinion to rebut the legal presumption (see Clyde v. Clyde, 1958 S C 343).
The question of law then is whether in the circumstances the 1945 will is effective to carry the deceased's estate or whether it must be ignored, with the result that the estate falls into intestacy. This question is, in my opinion, at the outset properly put in that way: it is not, strictly speaking, correct in my view to treat the question as if it were whether the 1945 will was revoked and later revived. This is because a man's testamentary dispositions are looked at as from the date of his death: the 1949 settlement could not be effective until the date of his death, and the law presumes that by that time he has destroyed it animo revocandi. It never became effective.
The 1945 will is a validly executed testamentary document, in existence at the date of the deceased's death in the repositories of his solicitors. It has not been cancelled or disfigured: no later valid testamentary document revoking it has been proved. It is not said that he at any time gave instructions that the 1945 will was to be destroyed, nor that there is any legal presumption that he intended that it should be destroyed.
It was argued on behalf of the heirs ab intestato (1) that there is no general rule in the law of Scotland that, where a testamentary writing has been revoked by a subsequent testamentary writing, which is itself cancelled by the testator, the earlier testamentary writing revives and will receive effect, as if it had never been revoked, provided it is extant at the date of the testator's death; and (2) that, on the contrary, it is always a question of intention, depending on the circumstances of each case; it is always competent to prove by verbal evidence that the testator did not intend that the earlier testamentary writing should revive and that its provisions should be effective to regulate his succession.
Counsel for the heirs ab intestato argued that Lord Fraser was wrong in stating the "general rule" in his opinion in the Debate Roll, to which I refer. The authorities referred to did not support the proposition. Reference was made to Erskine's Institute, III, ix, 5, footnote 570. It was said that this footnote was only in Nicolson's edition (1871). This I find to be inaccurate: in Lord Ivory's edition (1828) precisely the same footnote appears. The rule there stated appears to me to be quite definite and also in accordance with principle, viz., "When the latest of several testaments revoked all previous ones, but is itself afterwards cancelled by the testator, the prior testaments revive, as if the later one had never existed." This is to be read along with the sentence in section 5 of the passage from Erskine (just before the footnote), stating that a testament "is ineffectual till the death of the testator; and consequently he retains a power of revoking it at pleasure, and substituting another in its place, by which the first becomes of no force."
If there is any criticism to be levelled at this "rule," it is in my view rather in the use of the words "revive" and "revoke." If a testament is ineffectual until the death of the testator, a later one that has been cancelled or destroyed by the testator before death is treated as if it had never existed, and therefore it is not strictly accurate to speak of an earlier one having been revoked and revived. It was never revoked, because the later testament never had any effect. But this does not assist the argument for the heirs ab intestato.
In Howden v. Crichton, 8th July 1815, F. C., a rather inconclusive case, as Lord Fraser observed, it seems that all the judges agreed upon the principle that a general clause of revocation of previous wills in a destroyed will can be accorded no effect, and so a previous will may consequently become effective. But Lord Meadowbank did not think that it was decided law that the circumstances of the destruction of the later will, and in particular the testator's intentions, could not be investigated by parole testimony.
Lord M'Laren's observations on the question (Wills and Succession, (3rd ed.) vol. i, paras. 747 and 751), though guarded, seem to accept the general rule as being decided, although in my view the comment (in para. 751) on the case of Dove v. Smith, (1827) 5 S. 734, is inaccurate. See also Elder's Trustees v. Elder, (1895) 22 R 505, Lord Adam at p. 510.
In Ferguson v. Russell's Trustees, 1919 S. C. 80, a testator who had executed a will in 1878, executed another will in 1885, by which he revoked all previous testamentary writings. He retained the 1885 will and subsequently destroyed it animo revocandi. At the time when the 1885 will was being prepared by his solicitors, he sent them the 1878 will with a note of the alterations required. The 1878 will was still in their possession at the date of his death. It was averred, in an action for declarator, that the 1878 will was not operative as a testamentary writing, that the testator believed that the will had been destroyed, and that, when he destroyed the 1885 will, he believed that he was destroying the only deed which regulated his succession. It was also averred that he had stated that he wanted his estate to be distributed according to the rules of intestate succession. In allowing a proof before answer Lord Sands, after noting that the rule in English law was that it was a question of circumstances in each case, provable prout de jure, whether an earlier will revived if there had been a subsequent will revoking it, which had been cancelled, went on (at p. 84):
"Such a rule would be very foreign to the genius of our law, on account both of the reverence of our law for an extant probative deed and its jealousy of any interference with the operation of such a deed by parole evidence. In my view of the law of Scotland, if a deceased person left in his repositories a probative will, it would be irrelevant to aver that, subsequently to its execution, he had executed another will revoking it, which he had subsequently cancelled or destroyed."
Lord Sands, however, having stated this rule, went on to say that it is not an absolute rule, and added:
"It is competent to prove that the deceased did not intend it as his will. If, for example, it were proved habili modo that on executing a second will the testator had instructed his law-agent to destroy the first will, and the law-agent, unknown to the deceased, had neglected to obtemper the instructions, the document would not be treated as the deceased's will, even though the revoking will had been cancelled or destroyed. Similarly, if a testator had given a cancelled will to an autograph-hunting friend because some great celebrity was one of the instrumentary witnesses."
In these circumstances Lord Sands allowed a proof before answer on the averments already mentioned, which embraced the testator's belief and intention regarding the existence and validity of the former will. On appeal the First Division adhered to Lord Sands's interlocutor without expressing any opinions on the law. On investigating the process in the Session Papers I find that no further opinion was delivered in Ferguson v. Russell's Trustees, the case being settled extra judicially before proof. The terms of settlement are not revealed.
The distinction drawn by Lord Sands is narrow, and it is important in my opinion to understand it. It is, he says, irrelevant to prove that a testator, subsequently to the execution of a will, executes another will revoking it, which he later destroys. This in my view is clear on principle. But this is not to say that it cannot be proved by evidence that the prior will was discarded by the testator as his will and was not intended by him thereafter to operate as a testamentary settlement at all. Such evidence could be that he had destroyed it deliberately, or had given instructions for its destruction: in the latter case, the fact that these instructions had not been carried out or had been evaded (as in the two examples given by Lord Sands) would not validate the will. A further example is in the case of Buchanan v. Paterson . (1704) M. 15932, where the facts were very exceptional. It appears to have been decided on the view that the testatrix had been deliberately frustrated by the interested party in having her last will and testament altered on deathbed, despite her instructions and clear intentions that this should be done. The provisions of the will quoad the interested party were thereafter held to be cancelled. As I understand it, however, Lord Sands is not saying that verbal evidence can be led to show that the testator had subsequently had other intentions regarding his testamentary settlement, which he had for one reason or another not given effect to. The fact that he had subsequently executed another settlement, or had intended to do so, would in itself tend to show that he had had other thoughts. But this is not relevant (Walker v. Steele, (1825) 4 S. 323). If a testator leaves a probative will, properly executed, which is his last will and testament, then in my opinion it will be effective on his death, unless it be proved that he had given instructions for its cancellation, which for some reason or another outwith his knowledge or control had not been carried out; or if it be proved that he had not destroyed it but had deliberately permitted it to exist for some different purpose than a testamentary settlement (e.g. the autograph-hunter example given by Lord Sands).
There is no evidence that in the present case the deceased instructed Mr Morrison to destroy the 1945 will when he executed the 1949 settlement or thought that it had been destroyed. But equally there is no evidence that he was aware that the 1945 will remained in existence subsequent to his signature of the 1949 settlement. In view of the fact that he had deliberately altered the 1945 will by the 1949 settlement because of developments in the nationalisation of hospitals in or about 1948, it seems to me to be probable that he would thereafter never have deliberately returned to the terms of the 1945 will. But this is irrelevant, in my view.
In my opinion, a testator, if he wants a testamentary writing to be destroyed, must do so personally, or give specific instructions that it is to be destroyed (Robb's Trustees v. Robb, (1872) 10 Macph. 692; Millar v. Birrell, (1876) 4 R. 87, Lord Gifford at p. 93). In the case of a will in the hands of his solicitors, without specific instructions to destroy the will the solicitors in my opinion are not entitled to do so.
I have found the case of Cullen's Executor v. Elphinstone, 1948 S C 662, helpful. In that case a testatrix had executed in 1937 a will prepared by her solicitors. Subsequently it was held by her solicitor in the safe in his office. In 1945 the testatrix, desiring to alter her will, again consulted her solicitor, and a fresh will was drawn up. It contained an express revocation of the 1937 will. As the testatrix had gone blind, the 1945 will was executed notarially and—as it subsequently turned out—invalidly. The solicitor then, believing the 1937 will to be of no further use, destroyed it without any direct instructions from the testatrix and without her knowledge. It was said that this was in accordance with the general practice of the profession at this time when one will had been revoked by another, later will. The testatrix died, and it was discovered that the 1945 will was invalid owing to faulty execution. An action was raised for proving the tenor of the 1937 will and for declarator that it was the last will and testament of the testatrix. The contest was between the beneficiaries under the 1937 will and intestacy. In deciding in favour of the claimants under the 1937 will (set up by proving its tenor) Lord Birnam said (at p. 664) that he had considerable doubt as to the competency of certain of the parole evidence led—particularly as relating to the instructions of the testatrix for the preparation of the invalid will of 1945. The essential facts, however, were that the testatrix gave no express instructions for the destruction of the 1937 will, and that, while she might have instructed a new will which would have had the effect of revoking the former one, these instructions were not effectively carried out.
Lord Birnam also (at p. 665) rejected the argument that the solicitor had implied, if not express, instructions to destroy the 1937 will because he had received instructions to prepare another will revoking the earlier one, and because (it was said) destruction of the earlier will was in accordance with professional practice. "Authority to destroy a probative deed should not readily be implied." Further, no valid revocation had in fact ever taken place, and no alleged practice of the profession could be effective unless known to the testatrix.
I think that these arguments apply to the situation in the present case, where revocation of the 1945 will in fact did not operate, because the 1949 settlement never became effective as a testamentary writing. Mr Morrison was bound, as he did, to retain the 1945 will in his repositories, in the absence of express instructions from the deceased to destroy it. Had he in fact destroyed it without instructions, it seems that an action for proving its tenor would have been appropriate. And, although the facts surrounding the invalid execution of the 1945 will in Cullen's Executor v. Elphinstone clearly indicate that the testatrix did not intend that the 1937 will should operate as her testamentary writing at the date of her death, such evidence did not avail to displace it as her last will and testament.
So, in the present case, I hold that the 1949 settlement must be presumed to have been destroyed by the deceased animo revocandiand never became effective. As a consequence, the 1945 will operates as the last will and testament of the deceased and must be given effect to, there being no proof that the deceased gave instructions that it was to be destroyed or had otherwise indicated that it was not to be regarded as his will.
The heirs ab intestato reclaimed, and the case was heard before the Second Division (without Lord Wheatley) on 25th and 26th March and 30th May 1969.
At advising on 19th June 1969,—
The difficulties in the present case arise from a combination of two sets of facts. The first is that some time between 1949 and 1961 (it is impossible, I think, to be more precise) the deceased obtained the 1949 deed from his solicitors; that it has never since been traced; that no acceptable explanation for its disappearance has been established; and that, as is common ground, and as the Lord Ordinary has held, it must be presumed to have been destroyed by the deceased animo revocandi. The second is that the deceased never gave express instructions for the 1945 will to be destroyed; and that deed, having therefore been retained by his solicitors, was the only ex facie valid testamentary writing of the deceased which (so far as known) was in existence at the date of his death. No one has attempted to set up the 1949 deed as a testamentary writing governing the disposal of the deceased's estate. The contest is between the heirs ab intestato on the one hand and the beneficiaries under the 1945 will on the other. The Lord Ordinary found in favour of the latter and the heirs have reclaimed.
A substantial amount of authority was cited to us, but, as the argument developed, it became clear that the differences in law between the two competing sets of claimants lay within a very narrow field. Indeed, I think that in his final speech Mr Mackay referred only to one passage from Dickson on Evidence—vol. i, para. 898—and to Cullen's Executor v. Elphinstone . Three initial problems faced the heirs. The first was the difficulty of approbating and founding on the revocation clause in the 1949 deed without at the same time approbating the rest of the deed—and to do the latter would have been fatal to their claim. The second was how to reconcile intestacy with the existence of the ex facie valid 1945 will. The third, which forms, as it were, the background to the whole dispute, is that a testamentary writing is an ambulatory deed speaking only from death.
In the end of the day Mr Cowie for the heirs conceded that he could not found on the 1949 revocation clause alone, although, as I understand him, he was not prepared to cast it aside entirely. His argument was that the deceased's instructions to his solicitors to prepare a new will in 1949 and his execution of that new deed, coupled with the fact that it was a universal settlement, amounted to an implied instruction to his solicitors to cancel or destroy the 1945 will. That, it was said, is the end of the 1945 will, because, in the words of Dickson (vol. i, para. 898), "a deed will be held as constructively cancelled, where the party intended to cancel it, and used means appropriate to that end, but where without his knowledge or against his will his purpose was frustrated by some other person." This passage from Dickson, however, seems to me to have no application to the present case, the facts of which are far remote from the examples of applicability which he cites. Had it been established that it was a practice of solicitors to destroy any earlier will on the execution of a later will which was a universal settlement or contained a revocation clause, and that the deceased was aware of that practice, the heirs ab intestatomight have had a launching pad for their argument. In my opinion, however, it is absolutely clear that neither of these propositions has been established. There was no "frustration" here.
It was not disputed that, as a general rule, where a later will with a revocation clause is destroyed animo revocandi, an extant earlier will governs the succession. There may, of course, be exceptions to that rule. The difficulty of the argument for the heirs ab intestato is that it would turn the exceptions into the rule. A revocation clause in a testamentary deed is itself revocable and speaks as at the testator's death. The same is true of a universal settlement, which by its nature impliedly revokes earlier testamentary deeds. The earlier deed or deeds are not cancelled or destroyed in either case by the execution of the later deed. They remain in a state of suspended animation with their viability dependent on whether or not, at the date of the testator's death, there survives another later deed habile, expressly or by implication, to revoke them. I can find nothing in the circumstances here to take the present case out of the ordinary rule of law. The deceased in 1949 was no doubt dissatisfied in some respects with his 1945 will. That is not an unusual situation: I have still to meet a person who made a new will without being dissatisfied in some way with the old one. One may speculate as to whether, in destroying the new will animo revocandi, the deceased here intended the old will to regulate his succession. On the other hand, the question whether the deceased abandoned his previous clearly evinced charitable intentions in order to benefit his virtually unknown heirs in conformity with the law of intestate succession in Scotland is a matter which is even more suitable for speculation. However, I do not think that such speculation has any relevance here and I refer to it merely because of certain submissions as to "intention" which were adumbrated in argument. I should add that evidence as to "intention" is admissible only in an extremely narrow and restricted field.
Finally, I should add that I am still unable to see how Mr Cowie can surmount the hurdle of approbate and reprobate by switching horses from the revocation clause of the 1949 trust disposition to the universality of that settlement. A universal settlement ex hypothesidisposes of the universitas of the estate. If it does so, the heirs ab intestato are eo facto excluded. It is not, in my opinion, open to the heirs to pray in aid the 1949 trust disposition, by reason of its universality, as a weapon to destroy the 1945 will and at the same time to cast it aside as a deed disposing of all or any part of the deceased's estate. As I have indicated, however, there are other substantial reasons which, in my opinion, render the claim for the heirs ab intestato untenable.
That being so, it is unnecessary to deal in detail with the argument of Mr Shiach on behalf of the Salvation Army. On the evidence as it came out, it has some legal merit. On the other hand, it would, I think, have been most unfortunate if it had been the crucial factor in the case. On the view which I have taken of the main arguments it is a factor which is still-born rather than crucial, and I say no more about it.
I would adhere to the interlocutor of the Lord Ordinary.
In order to understand the grounds for the appeal it is necessary to collect a few facts. As a result of the proof the Lord Ordinary held that on 26th July 1949 the now deceased had executed a trust disposition and settlement, in the terms set out in a copy which is No. 10 of Process, containing a clause revoking all previous wills. He also held it to be a proper inference that that settlement had come into the deceased's personal custody about 1955, and that, as it was not extant at his death, it must be presumed to have been destroyed by him animo revocandi, so that it never became effective. He concluded that the 1945 will must receive effect, there being no proof that the deceased gave instructions that it was to be destroyed, or had otherwise indicated that it was not to be regarded as his will. The heirs ab intestato accept, or at least do not challenge, the Lord Ordinary's findings, with the exception of the alternative with which the findings conclude. They maintain that the deceased had "otherwise indicated" that the 1945 will was not to be regarded as his last will. How that came about was put quite shortly by their senior counsel.
Mr Cowie submitted that the instruction given by the deceased to his solicitor to draw the settlement of 1949 was, when followed by the overt act of its valid execution, equivalent to an instruction given to his solicitor to cancel, by destroying, the 1945 will then in his custody, so that its continued existence was due to the solicitor's failure to obey the instruction and contrary to the deceased's intention. That way of putting the argument seems to avoid the Scylla of having to maintain that a settlement which never became effective nevertheless had the effect of revoking a prior will. But I think it encounters the Charybdis of having to maintain that an instruction to draw a revocable settlement is equivalent to an instruction to cancel a prior will. In my opinion there is no such equivalence, any more than it could be said that an instruction to cancel a prior will is equivalent to an instruction to draw a new will. The idea of equivalence will not do. But I think the real fallacy underlying Mr Cowie's argument is that it fails to recognise that the instruction to draw his settlement was an instruction which left it open to the deceased to revoke the settlement during life. So any inference of an intention on the part of the deceased that the will of 1945 should not regulate his succession was conditional on the settlement not being revoked. But that condition was never purified. Mr Cowie's argument was ingenious, but in my opinion it is unsound. The appeal therefore fails.
It remains to notice a submission made on behalf of the Salvation Army, who alone withheld any admission about the alleged trust disposition and settlement of 1949. Mr Shiach submitted that the evidence did not establish the valid execution of a settlement which, if it had remained extant, would have operated a revocation of the 1945 will. I think there was some misunderstanding at the proof and some failure to distinguish between a copy and a draft, which may have vitiated the Lord Ordinary's finding on this matter. Mr Morrison in his evidence stated that, so far as he was aware, no copy of the settlement of 1949 had ever been made. What he found in his office on the death of the deceased was the completed draft of the settlement, which he handed to his senior partner. Such a draft, as a contemporary record would have been best evidence of the execution and terms of the missing settlement, but it has not been produced nor has its absence been satisfactorily explained. When Mr Morrison in effect says that, as far as he can see, the copy of No. 10 of Process faithfully reflects the terms of his completed draft and so of the principal settlement, his evidence seems to infringe the rules which require best evidence and also corroboration. But the question of admissibility and sufficiency of evidence does not appear to have been argued before the Lord Ordinary, and there may be some answer which does not appear in the papers presented for our consideration. As in my view the appeal fails and the Salvation Army succeed in their claim, I do not find it necessary or desirable to form a final opinion on the matter of the admissibility and sufficiency of evidence.
On the whole matter I would refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor.
As the Lord Ordinary points out, no attempt was made by the claimants who in their claims had founded on the 1949 settlement to set up that settlement by proving its tenor, and in the end of the day none of the claimants sought to claim under it. Accordingly the main issue which the Lord Ordinary had to consider was whether the fund in mediofell to be distributed in accordance with the deceased's 1945 will or whether it fell to his heirs ab intestato.
The Lord Ordinary sustained the claim of the beneficiaries under the 1945 will, and it is against this interlocutor that the heirs ab intestato have now reclaimed.
It is common ground between the parties that the 1945 will was a valid testamentary document which disposed of the whole of the deceased's estate. It is also conceded that in 1949 the deceased in fact executed a trust disposition and settlement, but that this settlement cannot now be found. With the exception of one of the claimants, the Salvation Army, all the claimants admit that the terms of the 1949 settlement were similar to those contained in a document No. 10 of Process, which according to the averments of the pursuer and real raiser was a copy of the 1949 settlement. This document shows, inter alia, that the deceased was revoking all prior wills and also that the settlement was a universal settlement. The Salvation Army maintain that it has not been proved that No. 10 of Process is a true copy of what was contained in the 1949 settlement and further that it has not been proved that that settlement was ever properly executed; their admission in regard to the 1949 settlement goes no further than that the deceased executed a settlement in 1949.
In view of the fact that the argument presented on behalf of the deceased's heirs depends on there having been a second testamentary document formally executed, universal in its effect and containing a clause revoking all earlier testamentary writings, it will be convenient to consider the Salvation Army's contention at this stage. While in the discussion before us it was conceded that this contention was advanced before the Lord Ordinary, it would appear that it had not been very seriously pressed, as the Lord Ordinary does not refer to it in his judgment. He does, however, accept that it was proved that the 1949 settlement was validly executed on 26th July 1949 and that it included a clause expressly revoking all former wills made by the deceased. He has thus impliedly rejected the contention for the Salvation Army that nothing has been established as regards the contents of the 1949 settlement or even that a properly executed document ever existed.
As the case for the heirs depends largely on establishing that in 1949 the deceased intended to revoke, and did in fact revoke, all former wills, it would be of considerable assistance to the Salvation Army (and for that matter to all the other beneficiaries) if it could be shown that it had not been proved that any such testamentary writing had ever been executed.
The evidence in regard to the relationship of No. 10 of Process to the 1949 settlement and in regard to its proper execution is not very satisfactory, and I think that there is much to be said for the contention of the Salvation Army. I cannot help feeling, however, that it could have been established that the settlement which the deceased executed in 1949 was properly executed, that it was a universal settlement and that it contained a clause revoking all previous wills. It may be that the fact that all the beneficiaries except the Salvation Army admitted that the 1949 settlement was properly executed and that it contained the provisions to which I have referred resulted in the heirs ab intestato not presenting all the evidence which was available on this issue. It would also appear that there may have been a misunderstanding in regard to the nature of the document No. 10 of Process. In such circumstances I should be reluctant to sustain the contention advanced by the Salvation Army, particularly as I am satisfied that there are other grounds upon which the beneficiaries are entitled to succeed.
I shall accordingly consider the other issue in the case on the assumption that it has been established that the deceased executed a valid settlement on 26th July 1949 and that the document No. 10 of Process accurately represents its terms.
I can now turn to consider the principal issues which were raised both before the Lord Ordinary and again when the case came before us on this reclaiming motion against his interlocutor.
In their claim the heirs ab intestato averred that the deceased had on 10th March 1961 deliberately animo revocandi torn up his 1949 settlement, thrown the fragments into the fire and thus destroyed it. Certain evidence was led at the proof in support of these averments, but the Lord Ordinary rejected this evidence and held that it had not been proved that the deceased wilfully or accidentally destroyed the 1949 settlement before his death or that it was destroyed or lost thereafter. It was, however, accepted by all the parties that the 1949 will had been in some way or other destroyed or lost and no attempt was made by anyone to prove its tenor.
We are accordingly faced with this position. The deceased executed a formal will disposing of his whole estate and a few years thereafter executed a further settlement in which he disposed of the universitas of his estate and also revoked all prior testamentary writings. Prior to the death of the deceased the second testamentary document disappeared, but its contents were known by reason of the fact that a copy of the document had been preserved.
It was maintained on behalf of the heirs ab intestato that there was no absolute rule that the only extant will necessarily carried a testator's estate. They referred to a passage in Dickson on Evidence, (3rd ed.) vol. i, para. 898, where the learned author says:
"Further, a deed will be held as constructively cancelled, where the party intended to cancel it, and used means appropriate to that end, but where without his knowledge or against his will his purpose was frustrated by some other person."
This was in the end of the day the sheet-anchor of the case for the heirs ab intestato. It was maintained on their behalf that, where a testator executes a universal settlement and in that settlement revokes all previous testamentary writings, he shows a clear intention that none of his prior testamentary writings shall ever have effect, and that, when he executes such a will, he impliedly instructs his solicitor to cancel any previous wills. It was also maintained that it was clear from the terms of the 1945 and 1949 writings that the reason why the deceased executed the 1949 settlement was that he wished to remove from the list of beneficiaries organisations which had been taken over by the State; it was highly improbable that he would have wished to revert to a will in which a large number of organisations were beneficiaries. The case should be approached on the assumption that the deceased thought that the 1945 will had been destroyed.
The beneficiaries challenged the relevance of the passage from Dickson on Evidence on which the heirs ab intestato founded. It was taken from a paragraph in a chapter dealing with the mutilation of wills and could only be applicable where a testator had expressly instructed that all prior wills should be actually destroyed. There was no evidence whatsoever that the deceased had ordered actual destruction of his 1945 will. It was not open to the heirs, in the absence of any averment of practice, to suggest that it was the practice for a solicitor in circumstances like the present to destroy all previous wills, and in any event knowledge of such a practice could not be attributed to the deceased. The case of Cullen's Executors v. Elphinstone was, moreover, authority against there being any such practice. There was no evidence to support the Lord Ordinary's view that it was probable that the deceased would after 1949 never have deliberately returned to the terms of the 1945 will. In any event, as the Lord Ordinary says, this is an irrelevant consideration.
In my opinion the heirs have failed to show that the passage from Dickson on Evidence has any application to the facts of the present case. It appears to me that the learned author is referring to cases where a testator intends his prior testamentary writings to be destroyed there and then and not to a case where a testator provides in a deed (which will take effect only on his death) that such wills should be revoked. I think that a prior will might be held to be "constructively cancelled" if it were proved that a testator had instructed his solicitor to destroy his will and for some reason or other the solicitor had failed to do so. It is to be noted that in the passage referred to the author is not specifically referring to circumstances in which a testator is executing a second deed; constructive cancellation could take place although no later deed was executed or even contemplated. Counsel for the heirs, I think, appreciated that the mere fact that a testator executed a universal settlement containing a revocation clause was not sufficient per se to revoke prior deeds. There must be some other evidence to show that the testator intended that his prior writings should no longer have any potential effect. There is no evidence in the present case that the deceased ever gave his solicitor any instructions to destroy the 1945 will, but counsel for the heirs sought to maintain that, whenever a testator executed a second testamentary document which disposed of the universitas of his estate, he impliedly gave his solicitor instructions to destroy all previous wills and that it was the practice of solicitors to destroy previous wills when a later universal settlement containing a revocation clause was executed. It was further maintained that in the present case his intentions had been frustrated by his solicitor's failing to do so.
I am unable to accept this submission. While a testator may empower another person to cancel his settlement, such a power will not be raised by implication (see M'Laren on Wills and Succession, (3rd ed.) vol. i, para. 744). In Cullen's Executor v. Elphinstone Lord Birnam (at p. 665) expressed the view that authority to destroy a probative document should not readily be implied. So far as the alleged practice of solicitors is concerned, I do not think that in the absence of any averment raising this question it is open to the heirs to found upon such a practice. In any event, no such practice has been proved to exist. The only evidence on the matter was that of the deceased's solicitor, Mr Morrison, who said that it was not his firm's practice to destroy earlier wills unless specifically told to do so. Even if it had been proved that there was such a practice, it could have had no effect upon the testamentary provisions of the deceased unless such a practice was proved to have been within his own knowledge (see per Lord Birnam in Cullen's Executor, at p. 665) and no such knowledge on the part of the deceased was established in the present case.
In my opinion the deceased's estate falls to be distributed in accordance with the terms of his 1945 will, and the interlocutor of the Lord Ordinary should accordingly be affirmed.
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