United Kingdom House of Lords Decisions

5. If any such legacy or bequest was ever contemplated by the deceased, it must, in the circumstances set forth on record, be held to have been cancelled and revoked.

On the 29th May 1857 the Lord Ordinary Handyside pronounced an Interlocutor sustaining the Respondents' second and third pleas in law, assoilzying them from the conclusions of the action, decerning accordingly, and finding the Appellants liable in expenses. In explanation of his Interlocutor his Lordship issued the following note: —

The Lord Ordinary has been unable to discover any satisfactory legal ground on which he could recognize the writings founded on as containing a sufficient expression of the deceased's will, entitled to have effect given to them as a will, and this independently of objections to the contents of the writings as incapable of being acted on by reason of uncertainty and indefiniteness in the objects supposed to have been contemplated.

The first of these writings, dated in January 1836, is not only so obliterated in all material passages which may have given it that character, so as to prevent its being referred to and used as the expression of purpose and will at the period of its execution, but this writing, with the memorandum attached, is expressly annulled by the writing of 10th October 1842. It is plain, therefore, that any writing preceding that last date must be cast aside altogether, and only it and those of subsequent dates are to be taken as expressive of the last will of the deceased. Then, as to the writing of 6th September 1846—the latest of all those found—as it is not holograph of the deceased, and is otherwise improbative, it cannot be available by reason of improbativeness, if the deceased have not by previous writings attempted to provide for its authenticity being supplied and ascertained by some marks fixed upon by himself, and which law would, with whatever difficulty, recognize as sufficient to obviate the general objection of improbativeness. But, there is no special provision in the earlier writings to dispense, as regards this last one, with the recognized rule of law. The

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only writings, then, which can be put forward as being of a testamentary character are those holograph of the deceased, and bearing his signature unobliterated, of date 10th October 1842, and subsequent dates. Those founded on by the Pursuers as constituting the bequest, which they seek in the summons to be declared in their favour, are the writings of 10th and 20th October 1842. The question is, whether, singly or together, they constitute a valid bequest containing a sufficient expression of the deceased's will to be entitled to receive effect.

The writing of 10th October is first to be considered. It became the leading testamentary writing of the deceased, for it annuls all previously written by him on previous pages. Now, it is to be observed that this writing contains no words of conveyance or bequest either of the universitas of the estate, or of any portion thereof, or of any particular sum of money; nor is there any appointment of executors or of trustees, or a nomination of a legatee or beneficiary. The only thing is, after annulling all hitherto written on the preceding pages of the paper, the expression of—“I wish to establish in the town of Dundee,” &c. How this wish is to be carried out, who are to do so, what fund is to be appropriated for it—none of these things are provided for, or mentioned. The whole of the writer's expression of his will or desire is contained in the words “I wish to establish.” Throwing aside any consideration of the effect to be allowed to the word “ establish”—a subject which falls under the objection of uncertainty raised against the terms of the bequest, the sufficiency of the word “ wish,” as expressing a bequest in terms apt and sufficient, is to be determined. Had there been a conveyance in trust by the deceased of his estate, it is conceived there could be no doubt that such an expression of wish as to an object would have been tantamount to express words of bequest or direction.— Crichton v. Grierson, July 1828, 3 W. & S., 331. Or if there had been a nomination of executors to take and administer the estate, such words would have been efficacious. Even if there were an omission to name executors, yet the next of kin confirming would have been bound to give effect to a legacy as sufficiently constituted under such an expression of desire in the deceased's will.—See per Lord Fullerton, in Dundas v. Dundas, January 27, 1837. The peculiarity, and thence the difficulty, perhaps, in this case is, that there is a bare wish unconnected with any words of disposal or appropriation of the estate of the writer, and that the accomplishment of the wish is to be inferred as having been intended to be fulfilled by appropriation out of the estate of what was necessary to attain the end. There is probably difficulty in thus applying the words which it may be supposed were in the writer's mind, namely, “with my whole estate,” or “with what is requisite from my estate for the purpose,” so as to give perfect intelligibility to the wish, as it is expressed. Still the Lord Ordinary is not prepared

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to hold that the word “wish” is in itself, and by the want of other words, so feeble and defective, that it is not entitled to be taken as an expression of will, and introductory to a bequest, if that otherwise be sufficiently explicit.—See Report by Lord Stair of Nasymth v. Jaffray, July 25, 1662; Mor., p. 5483.

It is on reaching the next step in this writing that the fatal defect in it appears. It does not bear what it is that the writer wished to establish in the town of Dundee. The writing must be taken and read with the deletions appearing on its face when found. It wants, then, the essential word, indeed sentence, to make it intelligible and effective. It is a perfect blank as to what is to be established. Without the deleted sentence the later and concluding one, which remains unobliterated, has no meaning whatever—it depends wholly on the expunged sentence for intelligible application. The Lord Ordinary is unable to see any mode by which this writing can be set up as an expression of will. It appears to him that it must be wholly discarded and laid aside as being in essentialibus imperfect.

The Pursuers represented the deletion as being intentional only as regarded the sentence following “hospital,” and suggested that the word “hospital” had been deleted per incuriam. The Lord Ordinary cannot countenance such a suggestion as fitted for legal consideration. For the Court to reinstate the word which the deceased had struck out—which they would be doing by holding it to have been unintentionally deleted, of which there can be no evidence—would be wholly unwarrantable, and involve a stretch of power, under the guise of drawing inferences of the writer's mind and intention, contrary to the apparent fact shown by an act which speaks to the eye itself.

The Lord Ordinary thinks that the writing of 10th October must be taken exactly as it stands; and so the only operative part of it was annulling previous writings on the same sheet of paper, but which became of no moment, as the only unobliterated parts of such writings had reference to a life interest to his sister in his estate, but which was evacuated by her predeceasing him.

The second writing, of 20th October, is now to be considered. The Pursuers contend they are entitled to make use of it to supply the defect in the former writing by the deletion of the word “hospital,” and taking both writings together, they argued that thereby the will of Mr. Morgan is sufficiently demonstrated, and his intention explained, so as to entitle the Pursuers to have Declarator pronounced as concluded for.

This second writing does undoubtedly imply the execution and existence of a former writing by which Mr. Morgan had made some provision or declaration, or expressed some wish, regarding an hospital in Dundee, which he describes as “the hospital at Dundee,” and to which he had wished to be admitted 180 boys; and the change which he makes is by now expressing his wish

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that only 100 boys be admitted into the hospital, and that it should contain 100 in place of 180. But where is this previous writing to be found? The former writing is a blank as to hospital, and equally a blank as to boys. Unless the deleted sentence, which is not so obliterated but its words may still be read, is by that circumstance to be reared up so as to be read, and what has legally become a blank by deletion is notwithstanding to be treated as something which may notwithstanding be judicially read, it is plain that the second writing expresses a wish to alter or change something which has gone before, but evidence of which is legally non-existent. The second writing, standing alone, is insufficient in its terms to form a bequest, and the contrary was not attempted to be maintained. It is dependent on the existence of a former valid writing constituting a bequest, and which is to be altered in one respect by this second writing. But if there be no former writing in regard to an hospital at Dundee, and to which reference is explicitly made by mentioning “ the hospital at Dundee,” the later writing becomes nugatory.

The Lord Ordinary conceives there is insuperable difficulty in connecting the one writing with the other. Reading the first, as according to the rules of law it must be read, by holding the part deleted as pro non scripto, it is radically defective, and so must be denied legal effect. Reading the second as referring to a prior writing—where is that prior writing regarding the hospital to be found? The two writings are not to be pieced together in order that a word or sentence in the one is to be transposed to the fitting place in the other, so as to make sense out of both when neither is intelligible in itself. But this is what the Pursuers would have to do; for without transposition, but adding merely the latter to the first, and combining the two in their order, the writings would not be intelligible as a whole.

Entertaining these views of the character of the two writings, the Lord Ordinary has felt no real hesitation in coming to the conclusion that they cannot be supported as valid testamentary writings. If this conclusion be correct, it is unnecessary to enter into consideration of the objection to the effectiveness of these writings on the ground of uncertainty. The Lord Ordinary has, accordingly, limited his ground of judgment to sustaining the second and third pleas of the Defenders, as being sufficient, in his opinion, for the disposal of the case.

The Magistrates submitted the interlocutor of Lord Handyside to the review of the Second Division of the Court of Session, and that Court on the 26th of June 1857, adhered to the interlocutor of Lord Handyside, and mulcted the Magistrates in costs.

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