United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1711) Robertson 26

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 9.

Katherine Moniepenny, Widow, Appellant

v.

John Brown, and Isabel his Wife, Respondents

15th May 1711.

Subject_Testament. —

Fountainhall, 15 July 1710.

Forbes, 14 July 1710.

A testament executed in extremis reduced, where the testator's hand was supported and assisted in writing the latter part of his name.

The respondent Isabel, sister to the late George Moncrieff of Sauchop, and John Brown her husband, brought an action before the Court of Session for reduction of Mr. Moncrieff's last will and testament as not having been duly executed. It bore date the 19th of November 1707, the day of Mr. Moncrieff's death, and by it great part of his personal estate was bequeathed to the appellant his widow, whom he appointed executrix. A proof was taken in this action, by which it appeared that the deceased, whose disorder was a consumption, on the said 19th of November, the day of his death, gave directions to one Watson for drawing the will, and approved of it when read over to him; that he wrote part of his name to the will, (George Mon) but was assisted in writing the latter part, which differed from the mode in which the deceased had been accustomed to spell his name; and that he died a short time afterwards.

The Court on the 14th of July 1710 “declared the said testament null and void, the subscription not being finished by the deceased without assistance, nor executed according to law.” And by a second interlocutor on the 15th of November 1710, the Court “found, that the testator did not complete his subscription but that his hand wavering he was supported by the writer, who assisted him to write the last syllable of his name, and therefore declared the said will null and void.”

Upon the appellant's petition witnesses were re-examined upon this point, whether they had heard the testator acknowledge his subscription after the will was signed; and the Court by their interlocutor on the 3d of February 1711 “found this not proved, and therefore adhered to the former interlocutors, and reduced the said will.”

Entered, 22 March 1710–11.

The appeal was brought from “a decree of the Lords of Council and Session of the 14th of July 1710, and the affirmance thereof the 3d of February following.”

Heads of the Appellant's Argument.

The will is in itself a most just and equal disposition of the personal estate of the testator. All the witnesses agree, too, that the testator was of perfect and found judgment, and that he most distinctly gave directions to Watson to write the will as it now stands, and named and sent for the particular persons that he wished to have as witnesses to the execution of it. And Watson having written out the will according to these directions, he read the same to the testator, who being asked if he was pleased therewith,

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answered he was very well pleased: that thereupon the testator signed the same, and wrote George Mon without any assistance; but Watson perceiving his hand to waver took him by the “shackle-bone,” and supported his hand while he wrote the rest of his name; yet since he lived some time after signing the said will, and had so fully given directions for having it drawn in the manner it now appears, it ought to be esteemed his deed, and duly executed by him. And though there was some little variation from the testator's usual mode of spelling, indulgences of this kind ought always to be allowed to dying persons. Nor is it of any moment that the witnesses did not hear the testator acknowledge his subscription; that is only requisite, where witnesses are not present when a deed is signed: but in this case, the four witnesses heard the testator give directions to write the will, heard him approve of it when read to him, and were present in the room and saw ^(a) him sign, which is all that the law of Scotland requires.

The laws of all nations have agreed in this, ut ultima voluntas defuncti sortiatur effectum, and therefore several things necessary to complete deeds inter vivos are dispensed with in wills, where the principal thing is the indication of the testator's purpose.

Heads of the Respondents' Argument.

1681, c. 5

In matters of this nature the law does not regard intention as sufficient, though never so carefully expressed, if that intention was not reduced to a complete and formal act. The testament in question can never be deemed to have been completed by the testator himself, since the subscription was not finished by himself, and the last part of it appears to be of a different hand, and more regularly written than the first part of it; and the name is spelled in a different way from what the testator had been accustomed to, and in the manner it is written by Watson in the body of the will. It was further not executed according to law, for though there were four subscribing witnesses, yet three of them could not positively depone that they saw the testator sign the will from his position in bed, neither did they hear him own his subscription, after it was signed; and without one of these, by the law of Scotland no will or deed can be complete. “Si quæramus an valeat testamentum, in primis animadvertere debemus, an is qui fecerit testamentum, habuerit testamenti factionem; deinde si habuerit, requiremus, an secundum regulas juris civilis testatus sit.” Digest. L. 28. t. 1.

Whatever favourable interpretation wills may receive, when once solemnly completed, it is absolutely necessary that the rules of law in the execution of them should be exactly observed.

Judgment, 15 May 1711.

After hearing counsel, It is ordered and adjudged, that the petition and appeal of Katherine Moniepenny be dismissed, and that the decree therein complained of be affirmed.

Counsel: For Appellant, P. King.
For Respondents, Tho. Lutwyche. James Grabam.

_________________ Footnote _________________

(a) The respondents state that the witnesses did not see him sign. The fact appears from Fountainhall to have been, that they saw him take the pen in his hand, but from his position in bed Watson only saw what followed.

1711