United Kingdom House of Lords Decisions

Feb. 1779.

Thereafter, and in February 1779, by a last will, he gavel and devised and bequeathed to his son Thomas Dundas all my real estate in England, Ireland, and Scotland, as also in the island of Dominica in the West Indies, and elsewhere, not included in the settlement made on his marriage, and all my personal property of every nature or kind soever, to hold to him, his heirs, executors, &c. charged with an annuity of £2400, to his wife, and legacies to his servants. There was this clause in this will:

“I do hereby revoke all former and other wills by me heretofore made, and do constitute and appoint my dear son my sole executor.”

The testing clause ran thus:

“In witness whereof I have hereto set my hand and seal this 14th day of February 1779.”

(signed) “Laurence Dundas.” “Sealed, published, and declared by the said testator, as and for his last will and testament, in the presence of us, who in his presence, and in the presence of each other, have subscribed our names as witnesses.” (Signed) “A. Drummond, Crawford, Cha. Sayer.”

This deed was prepared and executed in London according to the English form.

Sept. 21, 1781.

On Sir Laurence Dundas's death, the questions were, 1. Whether the clause of revocation therein was good to recal the entail; and, 2. Whether the deed was good of itself to carry heritage in Scotland, it not being tested according to statutes.

Feb. 25, 1783.

The Court of Session pronounced this interlocutor:

“Find that the deed of entail libelled on is effectually revoked by the deed executed by Sir Laurence Dundas upon the

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14th Feb. 1779.”

And on reclaiming petition the Court adhered.

Mar. 11, 1783.

Against these interlocutors the present appeal was brought.

Pleaded for the Appellants.—The latter will or deed 14th February 1779 being not holograph of the granter Sir Laurence Dundas, and not being tested, in terms of the statutes, as wanting the name and designation of the writer, and designation of the witnesses, is null and void, and of no effect to revoke an entail conveying heritage, executed with all the statutory requisites. It is no answer to this to say, that the testament is not founded on as a conveyance, but only as an effectual revocation, because the law of Scotland acknowledges no such distinction, as all deeds affecting heritage must be executed in a formal manner: But, separately, Sir Laurence, by the latter deed or will, did not intend to revoke the entail, but the sole object of that deed was to burden the heir with the annuity and legacies; for had he intended it so to revoke the entail, the word entail would have been mentioned, and the general terms, “all former and other wills,” cannot have the effect of revoking a deed of entail by construction or implication.

Pleaded for the Respondent.—Although Sir Laurence had undoubted right to alter or revoke the entail at pleasure, yet the question is, Whether the last will of 1779 was intended to be, and was in point of law, a revocation of that deed. It is clear that the later deed was a departure from the entail or destination, in so far as it gave his son, the respondent, a fee simple of the whole estates in England and Scotland, except the lands settled by the marriage articles; and the plain meaning of revoking “all former and other wills,” just meant, that in pursuance of the powers reserved to himself, he now altered the previous settlement, and thus revoked the entail. Its effect in law is equally beyond dispute, because the reservation of a power to do any act, is a mere declaration of will, which may be executed by any authentic deed. And as the will here questioned was properly authenticated according to the law of England, where it was executed, it ought to be held good as a contrary declaration of will to the effect of revoking a former deed, though conveying heritage. Though not good as a deed conveying heritage in Scotland, yet, being properly authenticated, it was good as a revocation.

After hearing counsel, it was