Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Whyte v. Hamilton [1882] UKHL 688 (15 June 1882)
URL: http://www.bailii.org/uk/cases/UKHL/1882/19SLR0688.html
Cite as: 19 ScotLR 688, [1882] UKHL 688
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_House_of_Lords
Page: 688↓
House of Lords.
(Before
v.
( Ante, July 13, 1881, vol. xviii., p. 676, and 8 R. 940.)
Subject_Succession — Testamentary Writ —“Notes of Intended Settlement” — Proof — Competency of Parole.
Facts:
A document holograph of the granter, disposing completely and regularly of his whole heritable and moveable estate, was headed “Notes of intended settlement;” the granter left no other testamentary writing. Held (aff. judgment of the Court of Session) that the terms of the title justified the admission of evidence prout de jure to confirm or to disprove the testamentary character of the document, and that, the evidence so led being neutral in its result, the ambiguity of the title was not sufficient to show that the document was not a final expression of the granter's will; and the document sustained accordingly as a valid testamentary writing.
This case was decided by the Second Division of the Court of Session on July 13, 1881, ante, vol. xviii, p. 676, and 8 R. 940. The defenders appealed and were heard by the House, but the pursuer was not called on.
At delivering judgment—
Now, my Lords, I take it that the principles applicable to such questions admit of no reasonable doubt. In the first place, I lay it down that it is in my judgment a proposition universally true that nothing can receive probate which was not intended to be a testamentary act by the testator. Of course it might happen that something which he did not originally intend to be a testamentary act was converted into a testamentary act by a subsequent and sufficient manifestation of intention on his part, but either at the time when the act was originally done or at some other time he must in a sufficient way manifest his purpose that it should be a testamentary act, and with regard to all the cases which have been referred to, in which early death, sudden death, or anything of that kind was a material circumstance, I do not at all understand that the circumstance was ever held to make an instrument testamentary which had no testamentary character independently of it. The materiality of that particular state of circumstances arises with regard to instruments of which the testamentary character is deemed to be provisional and qualified, so that the question whether it continued testamentary, as expressive of the last will of the testator down to and at the time of his death, will depend upon the nature and circumstances of the qualification of the originally testamentary instrument with reference to which it may be said to have been provisional.
My Lords, with that preface I come to the next point, which is this, When you have an instrument in all points of form and in all points of substance on the face of it testamentary, and nothing more is needed to obtain probate of it in England or confirmation of it in Scotland (I am now of course speaking of it as operating upon personal estate) than proof of the mere act, yet if on the face of the instrument there is something to suggest a doubt or a question whether it
Page: 689↓
It was therefore held that such extrinsic evidence should be admitted. But the result, my Lords, of the extrinsic evidence which has been admitted is in my judgment really nothing. I shall afterwards state my reasons for thinking that those circumstances which have been noticed in the Courts below do amount to nothing; but for the present I simply state that that is the conclusion at which I have myself arrived.
Well, then, when after having invited and received such extrinsic evidence as it was possible to offer, the Court finds that no light is thrown upon the matter, what is it to do? It has been argued that any circumstances which lead the Court to receive such evidence, throw upon the person propounding the instrument a burden of proof which he fails to satisfy if the evidence is not confirmatory of the testamentary character of the instrument in a positive sense. My Lords, I do not think that there is any such rule, and I am perfectly sure that when the question is examined on principle no sound principle can be suggested in favour of such a rule. The natural consequence, as it appears to me, of the failure of extrinsic evidence to assist the Court in determining anything as to the character of the instrument, is that the Court will fall back upon the instrument itself and see what, upon a sound application of that principle, is the construction to be arrived at. It may be that upon a sound construction of the instrument it excludes the idea of its being a testamentary act. In that case, of course, the onus plainly would be upon a person asserting its testamentary character, to countervail the apparent character of the document by any sufficient and admissible evidence tending to show that in point of fact it is testamentary. But, on the other hand, if upon the face of the whole instrument, in the absence of evidence to the contrary, it appears that the intention of the testator was to make it testamentary, I am wholly unable to understand upon what imaginable principle you can refuse to construe it as you would construe any other document, and hold it to be testamentary if the intention of the testator collected from it is sufficiently clear in that direction.
My Lords, if that is so, the question is whether this particular title is such as to prevent a Court on construction from holding the instrument to be testamentary and continuing in operation as such until the death of the testator, which took place I think seven years after its date. That question may be divided into two parts in this way:—First of all, do these words “Notes of intended settlement by Walter Whyte of Bankhead” in themselves import that he did not mean it to be testamentary? If they do, then certainly I should agree with the appellants that that is necessarily fatal to the attempt to make it testamentary, at all events in the absence of proof that by some act, sufficient for testamentary purposes, he altered its original character. But, my Lords, I cannot for a moment hold that those words negative the idea that he meant it to have a testamentary effect. I will return to an examination of the instrument a little later. I have said that the question may be divided into two parts. I have stated the first, and the second would be, whether this instrument imports that if testamentary at all, it was so only in a temporary and provisional sense, and for a temporary and provisional purpose, which could not be presumed to continue, not having been executed during the period of seven years which elapsed until the testator's death.
Now, my Lords, I have said that I cannot construe the words as in themselves enough to negative a testamentary intention, and with regard to the argument on that point it is really founded mainly upon English cases (although there is some recognition of the principle of these cases in the judgments given in this House in the case of Munro v. Coutts) which arose in the English Courts as to imperfect testamentary instruments before the passing of the Wills Act. My Lords, with regard to the principle of those cases, I may say that they seem to me to have at all events no application here unless we first determine upon construction that this is within the sense of those authorities an imperfect testamentary instrument. The mere form of the title does not itself prove anything of that kind, and I apprehend that what is said by Mr Jarman in his Treatise on Wills, no doubt not with reference to any particular question exactly like the present, but in a general way, is perfectly true, and true as to wills of personal as much as to wills of real estate. At page 13 of the first volume of the third edition of that work Mr Jarman thus, I think, correctly states the law, which he proceeds to illustrate by some instances not similar to the present—but I refer to the passage for the principle. “The law has not made it requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary
Page: 690↓
These cases of imperfect instruments to which reference has been so much made are thus described and correctly described in Williams' book on Executors, at page 71 of the last edition—“The word ‘imperfect’ when applied technically to instruments of this nature, means that the document is, upon the face of it, manifestly in progress only, and unfinished and incomplete as to the body of the instrument.” I need not read more, because such a description of an imperfect paper seems to me to show that this is not an imperfect paper in that sense. I will presently consider whether the principle applicable to such imperfect papers may not be extended somewhat further when you show that the paper was intended for a purpose which related exclusively to giving present expression to a testamentary intention. And this appears to me to be as perfect a testamentary disposition as I ever saw. The words are all words in prœsenti—“I liferent,” “I leave,” “I also leave” “are to revert back,” “excluding,” “I also exclude,” “are to be handed over,” “I also leave,” “I likewise leave.” From the beginning to the end it is perfect in form, perfect in substance, a complete disposition, all in positive words, and I can conceive nothing whatever which remains to be added or supplied for the purpose of the execution of those intentions which are apparent on the face of the instrument,—the instrument is absolutely wanting in nothing whatever. Therefore, my Lords, unless you are to extend the doctrine of imperfect testamentary instruments somewhat further by reason of the title, and the title only, this is not an imperfect, but it is a perfect instrument.
My Lords, I may also say that the case of Lord Scarborough's will extremely well illustrates what is meant by an imperfect instrument. There were there a number of imperfections in a sense very different from what you have here,—there were initials for the names, and every word almost was a symbol, so that to translate it into an intelligible form—intelligible by anyone but a member of the family at all events—would be a difficult matter. Nothing could be more clear and obvious than that the instrument was not intended as a testamentary instrument even if there had not been on the face of it a declaration that it was meant as instructions to his solicitor. It received effect provisionally, but it was an imperfect instrument coming within this description.
Now, it may be—I will not say that it is, because it is not at all necessary to go into a minute examination of the English rule in the Probate Court, and all the particular cases in which it has been applied by the Judges of that Court as to these imperfect instruments—but it may be (and for the present purpose I think it fair to assume that it is)—fully proved that an instrument as complete as this in point of form and substance may nevertheless be brought within the rules applicable in the English Court of Probate before the Wills Act to imperfect instruments by any matter upon the face of it which shows that it was intended as a preliminary document—as a document looking forward to something else than itself, more perfect and more full, or more formal, perhaps, to be done. For example, there are cases in the books, in which you have such words as “Heads of the Will” that was the case in Bone and Newsam v. Spear, or “Plan of a Will” as in Mathews v. Warner, or “Sketch of my Will,” as in Hattatt v. Hattatt, and still more “Instructions for a Will” or “Instructions to the Solicitor,”—all those headings have a tendency, very much greater than the title in the present case, to warrant the conclusion that although the testator's final intention may have been expressed in the instrument, yet it was not the final instrument which he had it in his mind to execute. “Heads,” for example, though I think not necessarily, yet to a certain extent, give the idea that it is a summary, to be extended more fully afterwards. “Plan” and “sketch” rather more strongly indicate the same notion, and “Instructions” indicate it with precision and in a manner unequivocal. “Instructions for a Will” imply that the solicitor or law-agent is to be by some document instructed to prepare some other instrument. Instruments in all those forms have been held, and I think rightly held, under certain conditions to operate as testamentary acts provisionally but in view of the execution of a more formal testamentary act afterwards, and the particular character of such acts has led in the English Courts to certain conclusions which may be in such cases material, but which do not follow in cases of a different kind. Well, but this instrument falls very far short of any of those forms of expression. You have here “notes of intended settlement.” The word “notes,” as it seems to me, by no means necessarily implies that something more is afterwards to be done—that it is to be extended by a lawyer. It is not equivalent to “instructions,” or equivalent to showing that the testator himself is not content to abide by the instrument as a sufficient expression of his intention. It would be almost an absurdity to suppose that the testator means instructions to himself. “Notes” certainly does not signify instructions to anyone else, and it appears to me that “heads” is very much the same as the word “memorandum.” What the testator had in his mind when he used the word “notes” is certainly to be collected as properly from the instrument itself as the character of the instrument is to be interpreted by the word “notes.” He has set down in this instrument his intended settlement.
Then it is said that the word “intended” implies something to be afterwards done. No. Why the whole language of all the decisions turns upon the testator's intention The document is one that expresses an intention which according to all the books is ambulatory, and which is necessarily prospective and future. And therefore the word “settlement” if it stood alone, as it appears to my mind, would naturally, when applied to such an instrument as this, upon the face of it mean—This is the settlement which I intend to make of my estate after my death,—and I think the addition
Page: 691↓
Well, then, my Lords, that being so, it seems to me that there remains certainly no difficulty whatever in the case. One circumstance is to be noted here, namely, that you are not dealing, as in many of the cases which have been referred to, with that which would alter a previously formal and regular testamentary instrument, as to which there is, according to the language used, I think by Sir John Nicholl, also in the 4th vol. of Haggard, in the case of Blewitt v. Blewitt, a special presumption against the change of such previous regular dispositions by an imperfect instrument. He says, at p. 464 of 4th Haggard—“The strong presumption of law is always adverse to an unfinished instrument materially altering and controlling a will deliberately framed, regularly executed, recently approved, and supported by previous and uniform acts of disposition.” I think, upon looking at the circumstances, it will be found that many of them, if not most of them, are of that character here. There is in the present case no such subsequent instrument, and the effect of raising presumptions against the instrument in question from the title would be to produce a total intestacy, and disappoint that which, as plainly as anything could make it, was the intention of the testator as to the settlement of his estate.
My Lords, is there anything in the parole evidence? The parole evidence really contains only three circumstances upon which any observation has been or could be made—first of all, that this document was found after the testator's death in a desk where there was some loose papers lying upon it, and a cash-book, and a banker's book. It seems to me that that was quite as likely a place for the testator to keep his will in as any other. At all events, I conceive no circumstance of less importance for the purpose of determining whether the document was testamentary or not. Then it is said that three years, I think after the date of the instrument, the testator asked his man of business whether he could increase the provision made for his wife by a marriage settlement. I am not myself inclined to found much upon that one way or the other; it seems to me to tell quite as much in one direction as in the other. He had done so by this instrument. It was argued on one side that if he had done so he would not be likely to ask such a question if he understood that it had been done. And on the other side it was suggested, that it was likely that having done it he would wish to be sure that he had not exceeded his powers, and that his intention could not be disappointed. One way of putting it countervails the other, and it results in nothing. Then there remains a third fact, which, if this had been an imperfect instrument at the time to which I refer, might have been of some importance in the appellant's favour, but which, as it was not so, tends rather the other way, namely, that being accustomed to consult in matters of business a Writer to the Signet who was related to or nearly connected with him, he never said a word to him upon this matter. Well, that is rather strong to show one or other of these two things—either that whatever he meant by that document he certainly did not mean it as instructions to a solicitor to prepare his will, for neither did he communicate with the man whom he was accustomed to consult nor with anybody else, or, on the other hand, if it be fair to construe these words as meaning that they were instructions to some solicitors, then no doubt it would be very difficult to get out of the lapse of time, tending to the conclusion that his original intention had been abandoned, and that he meant it provisionally only, and that it could not have been intended to operate down to the time of his death, because there being an actual change of purpose in that way apparent upon the face of the instrument, it having been meant as instructions to a solicitor, and there having been full time and opportunity, and no solicitor ever having been instructed, there was a departure from the intention to that extent at all events, and a Court of Probate under these circumstances would assume that there was no such intention at all. That is the principle of
Page: 692↓
The result is, that the evidence is not of any value to assist us in the case, and in my judgment in the absence of evidence we must act upon principle. I therefore move your Lordships to affirm the interlocutor appealed from and to dismiss the appeal with costs.
Now, there is another circumstance in this case which bears very strongly upon my mind, and that is the length of time during which this instrument was preserved in the place and under the circumstances which I have described, and the attendant circumstances with reference to the people with whom the testator had to deal. For seven long years this instrument, so prepared with such intelligence, with such completeness, and with such apparent satisfaction with reference to the purpose of the testator, remains in this locked desk—there is no change at all, although during those seven years he has the fullest opportunity, supposing that this instrument was intended merely as instructions for a will, and not as a will itself, of having it reduced to a formal shape. We have the evidence of the same Mr Whyte
Page: 693↓
Now, these are the circumstances which appear to me conclusively to show that we are to take the instrument within its four corners. If there had not been this introductory line, prepared by this man, under what circumstances we do not know, and never can know, could there have been the possibility of saying that there was anything equivocal, that there was anything doubtful, that there was anything inchoate in the matter at all? The words are as positive and distinct and emphatic and imperative as any words which can be used. The thing is complete in itself for the purposes of the testator. What is there to indicate to any mind—legal mind or common mind—that it was not his completed and deliberate intention as to the disposition of his whole estate? It appears to me that there is nothing. That being so, it does not appear to me that there is enough in these introductory words to throw a doubt upon that which but for those introductory words would in my opinion be absolutely certain. In the first place, what has been said is perfectly true—(I am not going into the cases after the discussion of them by the Lord Chancellor)—that the Lord Ordinary was justified in putting this matter to proof because of this apparently equivocal statement. I will not say a word about it at this moment, antecedent to the completed will. What is the effect of that? Its effect is to put upon the parties to give evidence actually of sustainment of the instrument as a will. What has happened? Has there been any evidence given to impeach the will? On the side of the appellants has their been any evidence given which is of the slightest avail for their purposes. In my opinion there is nothing of the sort. I have indicated already the points on which my opinion rests. In my opinion the evidence goes altogether the other way. I mean as to the communication with the solicitor, the company and place in which the thing was found, and the circumstances under which it was found, and the other matters to which I have referred. That is the whole of the evidence which has been called on in the question that has been raised upon this document, and that evidence appears to me to go directly in favour of the respondent, and against the appellants. Therefore there is nothing in it in my opinion to impeach the completeness with reference to the will itself.
Well, but it is said that the heading has that effect. I will repeat what I indicated when Mr Inderwick was addressing the House, namely, that it does not appear to me at all that this heading is so clear an expression of opinion on the part of the deceased as to raise really a substantial doubt on the matter. If substantial doubt be raised in the matter, in my opinion the thing may be sustained rather than that the question ought to be determined the other way. But when you look at these words, and see what they are, it does not appear to me that it is necessary at all to say that they cast any doubt upon the completeness and the perfectness of the will. “Notes of intended settlement by Walter Whyte of Bankhead.” Now, it occurred to me early in the argument that a great deal of the discussion arose upon a misconception of the word “settlement”—that the word “settlement” does not necessarily mean a deed which is to be prepared, or a will that is to be prepared. But that this is a Scotch case I should have said that the word “settlement,” according to the habits of people in England and in Ireland, ought to be taken in another sense altogether. You would not think of calling a will a settlement in this sense. You may very fairly read it as if the man said—“This is a note of the arrangement of all my affairs which I intend to have carried out for the benefit of my family.” It appears to me that these words are quite equal to bearing that meaning, and that there is then not a doubt, and really no sort of question or darkness, upon the will itself. I think that they are quite equal to bearing that construction, and if that construction be the right one, cadit quœstio. There is no argument in the case. The case never should have been sent to proof at all. The will itself in that way would be perfectly complete and unimpeached and unimpeachable. But if the thing was equivocal, and if the words were capable of bearing the one construction and the other—the construction of the appellants and the construction which I venture to suggest—then I apprehend that we might call in aid that about which there is no doubt and no question, namely, the absolute provisions of the unequivocal will in sustainment of the will of the man, and for the purpose of carrying out his intention and preventing a defeat of it, and we might say—“We will take a construction which is beneficial to the will, and not a construction which will destroy it.”
Taking the whole of the case into account, I
Page: 694↓
That is not the law in Scotland at all. In England, before the Act of Victoria, so far as regarded personal property, there were some cases which, as it was before my time, I have never had occasion to look at, and upon which I certainly should not express an opinion without hearing out the argument on both sides,—cases such as that of the Earl of Scarborough's will, which has been mentioned, where a set of intentions on the part of the testator, which would not amount to a will, or which formed an imperfect will, have been held to be good if he died under such circumstances as to show that he was only prevented by death from making those intentions a perfect will. I am not quite certain that I thoroughly know how that matter was in the Probate Courts before the Statute of Victoria, and I certainly would not express an opinion upon it without hearing counsel on both sides. And I do not know whether that was ever the law in Scotland at all, and upon that point still less would I express an opinion without hearing counsel out on both sides. But I am quite clear that in this case no such question arises. If this instrument which the testator left behind him was not a will, but was an imperfect instrument, he lived for seven years after writing it, in constant communication with his man of business whom he was in the habit of employing, and there certainly is not the slightest ground for saying that he was prevented from making it perfect (if it required something to make it perfect) in an unexpected way. I therefore think that that question does not arise at all; and I express no opinion either upon what was the extent of that doctrine in England, or whether that doctrine was part of the law of Scotland or not. But in Scotland, as I said before, it was not required that the instrument to carry out the deceased's intentions should be witnessed. The common talk of Scots lawyers, I think, as far as my knowledge goes (being a Scotsman myself), would be to say that that instrument which declares the intention of the testator would be a “settlement;” that would be the usual phrase employed—meaning that that is the way in which he settles the disposition of his property after his death. In England I think it would be common to say, “That is the way in which he makes his will,” but I think that they both mean the same thing; they mean—that is the effect of his intention as to how his property shall go after his death. It has to be carried out according to the law of the country, and all the Judges below agree (and it has not been disputed at the bar) that if it had not been for the heading “Notes of intended settlement by Walter Whyte of Bankhead” this would have been a most perfect will according to the Scots law, properly executed, and perfect in all respects.
The only question then is, What is the effect of the words “Notes of intended settlement by Walter Whyte of Bankhead?” If the testator had written in express terms, as some people did in England before the Statute of Victoria, in order to avoid any dispute about the matter—“This is not testamentary, but is merely to be considered by myself, and considered by my legal advisers afterwards,” no one could for a moment contend that this would have been a good will; it would not have amounted to a declaration of his intentions so as to be carried out. On the other hand, if he had merely written, “This is notes of my settlement,” nobody, I think, could have disputed for a moment that he was using the word “settlement” in the way in which a Scotsman would use the word—meaning simply, “This is my last will and testament.” As it happens, he has used the words “notes of intended settlement;” and all the Judges below thought (and I probably agree with them—but that is not very material) that the expression is sufficiently ambiguous to permit the admission of extrinsic testimony to show whether this instrument was only meant by him as a memorandum of what he intended to have drawn up afterwards (or himself to draw up afterwards), or whether it was a final settlement signed by him.
Now, on that question evidence was given, and I think that if I were bound to go upon niceties, I should say that that evidence rather tends in the direction of supporting the view that this instrument was meant by the testator to be a final settlement. But it so very slightly tends to support that view (I will not go through the evidence again) that I would not act upon it all. The true way of looking at this case, or at least the way in which I intend to look at it, is that the whole evidence certainly comes to nothing upon which I would act. That being so, we are brought back to the point, What is this instrument meant by the testator to be, with the words at the top of it, “Notes of intended settlement by Walter Whyte of Bankhead,” and then going on, as has been repeatedly pointed out, in the most sensible, straightforward, clear, and business-like manner to express a present intention to give his wife an additional annuity, to give this estate to one, and that estate to another, all used in the present tense, and signed by him, which if it was a mere memorandum would be utterly unnecessary, but if he meant it to be a final disposition he should sign it, and that would be sufficient. If he meant it as instructions to his solicitor, there might be a reason for signing it as “Walter Whyte;” but then that would have been followed up by sending it to his solicitors.
Looking at the case altogether, my conclusion is (agreeing with the majority of the Judges of the Court of Session, and disagreeing with the Lord Ordinary) that in the absence of some extrinsic
Page: 695↓
The parties are agreed that the effect of such a title is to admit evidence of all facts and circumstances from which it may be legitimately inferred either that the writer intended the document to be his last will and settlement, or that he merely regarded it as a memorandum or jotting for his own or his law-agent's guidance in framing a formal will. The controversy between the parties is confined to the principle upon which extrinsic evidence is admissible. The appellant contends that it is admitted because on the face of the writing there arises a doubt as to its true character, which if not explained will prevent its taking effect as a will, and accordingly that the party propounding it must fail unless he can dispel the doubt by satisfactory proof.
To that argument I cannot assent.
The document taken by itself is a complete and valid will, and the ambiguous language of the title cannot in my opinion deprive it of validity. I cannot understand upon what principle a mere ambiguity occurring in the descriptive title written by the testator can be held to qualify the terms or to destroy the validity of the document which it professes to describe, when the legal character and effect of the document taken by itself are not doubtful. Such an ambiguity will justify inquiry which may confirm the testamentary character of the document, and may, on the other hand, lead to the conclusion that the writer intended it to be nothing more than a paper of notes or jottings for the preparation of a will at some future period, but should the parties lead no proof, or should the proof adduced by them be inconclusive, the document must receive effect according to its tenor and substance.
The law appears to me to have been laid down, as I have endeavoured to state it, in the case of Barwick v. Mullings (2d Haggard 225), where the body of the writing propounded, which was conceived in dispositive terms, and was dated and signed by the deceased, began with these words—“This is a memorandum of my intended will.” It is clear to my mind that Sir John Nicholl, although he permitted inquiry, would in the absence of evidence have pronounced the paper to be the will of the deceased. I cannot discover any appreciable shade of difference in the meaning of these expressions “memorandum of my intended will,” and “notes of intended settlement by Walter Whyte,” and I do not think the appellant can derive any benefit from the circumstance that the expression occurs in a separate heading or title, and is not incorporated with the dispositive part of the writing, as was the case in Barwick v. Mullings. I have therefore come to the conclusion that the writing of the 19th of June 1873 is prima facie the will of the deceased Walter Whyte, and that as such it must receive effect, unless it has been proved that Mr Whyte did not so regard it.
None of the Scots authorities cited in the course of the argument have a material bearing upon the present case. The case which in its circumstances comes nearest to the present is Forsyth v. Forsgth's Trustees ( 10 Macph. 616), but there the judgment of the Court was rested upon these facts—first, that the writing, which was alleged to be a holograph codicil to a former trust-disposition and settlement previously executed by the deceased, was incomplete, inasmuch as there was a blank space on the paper which had the effect of leaving the bequest undisposed of in an event for which the writer would presumably have provided in any final expression of his intentions; secondly, that it was headed “Draft of a codicil,” and that the writer had on previous occasions employed his professional adviser to prepare a formal deed from instructions prepared by himself; and lastly, that it was not found in the deceased's repositories along with his general deed of settlement, but in an open drawer in which he kept his wearing apparel.
If upon the evidence led in this case I had come to the same conclusion with the Lord Ordinary, I might have hesitated to assent to the judgment of the Inner House. His Lordship held it to be established by the proof that the late Mr Whyte had in the year 1877 a conversation with his law-agent, which indicated that according to the belief of the deceased he had not at that time made any addition to the provisions settled upon his wife by their antenuptial contract of marriage, and also that the place where the writing was found after his death was inconsistent with the idea that it had been preserved by him as a testamentary writing. I cannot agree with either of these conclusions. The terms of the conversation in 1877 as related by Mr Pollok are consistent with the supposition that Mr Whyte was desirous to ascertain whether the document which he had previously written and signed would be effectual; and the fact that the document was found in the private desk of the deceased, which was always locked, and of which he constantly kept the key, cannot in my opinion cast any discredit upon it. The evidence appears to me to be almost neutral in its character. It does not afford any decisive indication of the deceased's understanding and belief that he had made a will, and it as little suggests the inference that he understood and believed that the writing of the 19th of June 1873 was a simple memorandum or note of instructions.
I am accordingly of opinion with your Lordships that the interlocutor appealed from must be affirmed.
Interlocutor appealed from affirmed, and appeal dismissed with costs.
Counsel for Pursuer and Respondent— Herschell, S.-G.— Asher, S.-G.— Murray. Agents— Tods, Murray, & Jamieson, W.S.— Connell, Hope, & Spens.
Page: 696↓
Counsel for Defenders and Appellants— Balfour, L.-A.— Inderwick, Q.C. Agents— Campbell & Smith, S.S.C.— Grahames &Currey.