Scottish Court of Session Decisions

This was an action at the instance of John Murdoch, retired master mariner, Summerbank, Dalbeattie, against John Brass, 18 Wisbeach Street, Balmain, Sydney, New South Wales, and his factor and commissioner and others, in which the pursuer sought to have it found and declared—“( First) That the last will and testament dated 31st March 1891, executed by the now deceased Mrs Margaret Brass or Murdoch, the pursuer's wife, was valid and effectual; ( second) that by the said last will and testament a valid and effectual bequest of the whole estate belonging to his wife at the date of her death, but under deduction of the special legacies therein mentioned, was made to the pursuer; ( third) that the pursuer was entitled to take possession of the whole estate, property, and effects left by his said deceased wife.”

The defenders were the heirs ab intestato of Mrs Murdoch and the special legatees under her will.

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The pursuer averred—“(Gond. 2) By her said holograph last will or testament Mrs Murdoch provided for the disposal of her estate as follows:—‘ Glenshalloch Place, 198 High Street, Dalbeattie, 31/3/91.—I, Margaret Brass or Murdoch, being in my sound mind senses for the love I have for my husband John Murdoch will bequeath and leave everything which belongs to me or may belong to me at some future time. only bed & beding jewellery, body cloths. Napry &c to be equely divided amongest my brother children at the event of my death or if my mother outlives me to be hers her lifetime. Only what I have got from my husband John Murdoch to be equely divided between his two youngest daughters Bella and Lizzie. Alexr the youngest son to get the walnut writting tabel at the event of his father death if he outlives him if not to be divided amongest my said brother's children, for my brothers kindness towards me Mrs David Newall to get the chose of either of my white counterpanes. for her great kindness while I was sick. My brother's David & William Brass to see that everything is rightly done. This I have made for the love I have for all those mentioned in this will on the 31st day of March Eighteen hundred and ninety-one. Margaret Brass or Murdoch. Witness, David Newall, Glenshalloch Place, Dalbeattie, 31st March 1891, Witness, Alex. Young, Glenshalloch Place, Dalbeattie, March 31st 1891.”

The pursuer pleaded—“(1) The last will and testament of the deceased Mrs Murdoch being valid and effectual according to its terms, the pursuer is entitled to decree in terms of the first conclusion of the summons. (2) On a sound construction of the said last will and testament, a valid and effectual bequest of the whole estate of Mrs Murdoch, subject to the specific legacies therein mentioned, was made to the pursuer, and he is entitled to decree in terms of the remaining conclusions of the summons. (3) No relevant defence.”

The defenders pleaded—“(2) The said holograph will and testament of the deceased Mrs Murdoch being void from uncertainty quoad the disposal of her estate, with the exception of the special bequests therein made, decree of declarator should be refused with expenses. (3) No valid or effectual bequest having been made therein to the pursuer, the action should be dismissed with expenses. (4) Separatim, the words of bequest in said will, even if an object be supplied from the context, are insufficient to convey heritable estate.”

On 19th March 1904 the Lord Ordinary pronounced an interlocutor in the following terms:—“Finds that Mrs Murdoch's will referred to imports a bequest to the pursuer of all her effects, excepting the special legacies afterwards expressed therein; repels the second, third and fourth pleas in law for the defenders.”

Opinion.—“This is an action as to the validity and effect of the holograph will of Mrs Murdoch, who died without issue on 29th March 1892. The pursuer of the action is John Murdoch, Mrs Murdoch's husband, and the defender is David Brass, a brother of Mrs Murdoch, who states that he is her heir. A minute has been lodged, from which it appears that Mrs Murdoch's estate consisted mainly of one-fourth part of the estate of her father David Brass, who died in 1887, and whose estate is valued in the minute at £800 of heritage and £184, 3s. 3d. of moveables. Mrs Murdoch possessed, besides, certain furniture, plenishing, and trinkets of slight value. The bulk of her property was derived from her father.

The will is not long, but it is necessary to quote it at length.—[ His Lordship here quoted the will ut supra].

It may be worth while to notice that the will is well written and little corrected, and suggests the idea that it was copied from a draft. Although the will is holograph, the signature is attested by two witnessess. The peculiarity of the will which has raised this question is this, that after the first and general words of bequest no legatee is named. The questions are (1) can the name of the legatee be supplied by inference or implication? and (2) if so, what name shall be supplied?

I think there is no doubt that the document is a valid will to some extent. The bequest of the bed and bedding, the walnut table, and the counterpanes seem to be undoubtedly good bequests, and give rise to no question either about the legatees or the subjects. They are legacies the validity of which has not been questioned. So also the legacy of ‘what I have got from my husband’ is apparently good, although there may be some uncertainty as to the subject. The whole question is about the first four lines of the will, in which the testatrix says that for the love she had for her husband she left everything which belonged to her or might belong to her at some future time. The bequest ends there. What follow in the will seem to me to be separate legacies, complete in themselves, to which I have already adverted. Each of these subordinate legacies contains sufficient bequeathing words. One way of looking at the deed may be this, that the bequest of residue is at the beginning instead of the end, and I take it that that first clause, which may be called a residuary clause misplaced, has no dependence on the legacies which follow. I think the case is much the same as if the will had consisted solely of the first clause.

Looking at it in that way, there is a clause expressed in testamentary language in which there is a subject of bequest distinctly expressed and a reason for making the bequest—love for her husband also distinctly expressed. There is no blank left. In these circumstances can the legatee be supplied? I think the legatee can be supplied. There is a clearly expressed intention to bequeath, and then there ought to follow the name of the legatee. I think it impossible to doubt that the truster either thought she had

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sufficiently indicated the legatee or had omitted his name or the words ‘to him’ by mere mistake, very possibly in copying from a draft. See Baylis & Chant v. Attorney-General, 1741, 2 Atk. 239; Yates v. Thomson, 1835, 3 Clark and Fin. 544.

It was argued that a legatee could not be supplied, and that there was no case in the books in which that had been done. I do not know that there is any such case. But there are many cases in which inferences which are equivalent have been drawn. Thus the subject of a bequest has in several cases been arrived at by implication, as in Forbes v. Forbes, January 13, 1893, 20 R. 248, 30 S.L.R. 250. But what may be more to the purpose, there have been several cases in which legacies have been sustained where the legatees were wrongly named, as in Wedderspoon v. Thomson's Trustees, December 15, 1824, 3 S. 396, where a legacy bequeathed to ‘Janet Keiller or Williamson’ was paid to Agnes Keiller or Wotherspoon, and Forbes, supra. In these cases the Court practically struck out the legatee named and added the name of the legatee truly intended. I think the principle of these cases will cover this case where no name of a legatee is given.

Lord M'Laren remarks that it is scarcely conceivable that a testator should make a bequest blank in the name of a legatee (Wills, vol. i., 640). That remark would warrant the argument that in the apprehension of the truster this bequest was not blank in the name of the legatee, but that he was sufficiently indicated.

I am of opinion that it is not of necessity incompetent to supply the name of a legatee where it had been omitted by mistake, or because the testatrix had thought that the legatee was sufficiently expressed.

If that be so, the only question is, who was the legatee so indicated, and I think there can be no doubt at all that it was the husband of the testatrix, the pursuer. There was no one else whom it could be. Nobody was or could be suggested. The only alternative suggested was intestacy, a construction which cannot be adopted without necessity. I am of opinion that it is sufficiently shown by the deed itself and without going beyond it, that the testatrix meant to leave her effects, and did effectually leave her effects, to her husband, the special legacies being excepted from that bequest.

The question as to the validity of the will was the only question fully argued, and I understood the parties to wish a judgment on that point.

There are, however, two other pleas for the defenders which were not, I understood, intended to be fully argued—the fifth and sixth—and I must leave them over at present.”

The defenders reclaimed, and argued—The Lord Ordinary had dealt with the case as though it was one of falsa demonstratio; there was no demonstratio at all, and therefore no bequest. The ambiguity in the present case was not such that the object of the bequest could be ascertained by implication; there was no object, and the Court could not supply one. The ambiguity was patent, and could not be cleared up—Taylor on Evidence, 1212.

Argued for the respondent—What the testatrix had done was to make her husband her residuary legatee. The residuary clause was elliptical in form, but the implication that the pursuer was the intended beneficiary could not be avoided Parker v. Tootal, 1865, 11 Clark (H. L. Cas.) 143; Grant v. Grant, March 1, 1851, 13 D. 805; Jarman on Wills, i. 493.

At advising—