Scottish Court of Session Decisions

At advising on 23rd July 1940,—

LORD WARK .—The late Dr Alexander Macphail died on 28th August 1938, leaving a trust-disposition and settlement dated 29th April 1908 and a codicil thereto dated 16th April 1921. These were prepared by his solicitors, and were in their hands at his death. He also left two holograph codicils dated respectively 17th October 1929 and 26th February 1930; and another holograph document which is undated and unsigned. These three holograph writings were found among his papers after his death enclosed together in a sealed envelope addressed in his handwriting, "To my executors," and signed and dated 28th February 1930. By the third purpose of his will the testator directed his trustees to pay or convey any pecuniary or specific legacies of which he might leave a list in any writing under his hand to the persons named in such list respectively. By the fourth purpose he gave an alimentary liferent of his whole residue to his mother (who predeceased him), and directed his trustees to pay and convey the whole residue to the second parties, who are his sisters.

The codicil of 17th October 1929 is in the following terms :—[His Lordship quoted the codicil]—The codicil is duly subscribed. It is written on one side of a single sheet of azure paper apparently detached from an ordinary block of writing paper. The codicil of 26th February 1930 is also written on one side of a sheet of white paper apparently detached from a block of paper similar to that frequently used by doctors for writing prescriptions. This last codicil, it is agreed, is not effectual to revoke or alter that of 17th October 1929, and I need not refer to it further.

The first three questions in this case have reference to the validity and effect of the holograph list as a testamentary writing of the deceased. It is written upon both sides of a small scrap of paper which appears as if it were a leaf of a notebook. It contains on one side a number of figures which the parties agree represent pounds sterling. In each case a name is opposite the figure, and the names and figures are arranged in groups according to the families of four of the testator's deceased brothers. On the same side of the paper are the names of six nieces of the testator, each with the name of a place or places opposite it, i.e., "Kathie, Benderloch," "Dorothy, Blackwaterfoot, Malines," and so on. Parties are agreed that these names refer to water colour pictures of the places named belonging to and painted by the testator. The identification of the beneficiaries by these Christian names is not a matter of dispute. At the foot of the writing there occurs the following:—

"Dorothy, Pennagowan and remainder of property in liferent to be given ultimately to sick or convalescent children or Hospital Nurses Organisation of some sort—Barts for preference."

The testator had been at one time lecturer in anatomy at St Bartholomew's Hospital, London, which is often referred to as Barts. On the back of the writing there are fifteen Christian names, which are the names of nephews and nieces of the testator, and, in the case of nine of these, names of places follow these names of persons. It is agreed that these also are pictures of the places named. The Christian names on the back include four of the six names on the front of the paper, and these four are followed by the same names of pictures as on the front. In one case, at the top of the back page, the name of the picture appears, but the part of the page above it is missing. The paper is very thin and is much worn at the edges, as if it had been carried about for some considerable time; and, at the top and bottom, parts of the page are missing—apparently from wear.

The first parties to the case are the trustees; the second parties are the testator's sisters; the third party is his niece Dorothy Mary Macphail; and the fourth parties are the testator's nephews and nieces and their families referred to in the holograph list.

The first question between the parties is whether the holograph list is part of the testamentary writings of the testator. It was maintained by the second parties that it is not effective as a testamentary writing in respect that it is unsigned, and it was not in fact attached to the codicil of 17th October 1929; and further, that it bears the mark of being merely a deliberative and not a final expression of testamentary intention.

The general rule is well established that a document will not receive testamentary effect unless it is authenticated by the signature of the maker. The authorities on this matter were fully considered and reviewed in the seven judge case of Taylor's Executrices v. Thom . In that case all the members of the Court quoted with approval from the opinion of Lord Trayner in Foley v. Costello (at p. 369):

"I think the law of Scotland requires subscription as the essential and only admissible evidence of a concluded expression of will on the part of a testator … In my opinion, the rule is inflexible—no subscription, no will— and to admit the consideration of facts and circumstances to modify that rule would be very inexpedient and dangerous."

There is, however, one qualification to be made of the dictum above quoted—a qualification which, however, does not detract from the generality of its application. It is expressed thus in the recent case of Stenhouse v. Stenhouse by Lord President Clyde. His Lordship says (at p. 372):

"A will derives its whole validity from being the finally concluded act of the testator; and, where there is a doubt, the question always is whether the document put forward as a will contains evidence showing that it constitutes such an act. Subscription is the proper evidence. A will being simply a direction, or set of directions, for the disposal of the testator's estate after his death, subscription of the document in which these directions are set down is unnecessary if, in another writing which unmistakably identifies that document, the testator designates and adopts it as containing his will. In that case, the adoptive writing is really the will; and the document containing the directions plays the part of a schedule annexed to and incorporated with it. But, if the adoptive writing is really to make the will, and therefore to constitute the finally-concluded act, I think it follows from a number of decisions, some of which are not perhaps easy to reconcile, that it must contain the like evidence of being a finally concluded testamentary act as if the whole thing had been included in one document. The adoptive writing, in short, requires to be subscribed if it is to be effectual."

In Ronalds' Trustees v. Lyle a testator by his trust-disposition and settlement directed his trustees to pay, implement and fulfil any legacies or bequests "which I may leave or bequeath by any writing under my hand however informally the same may be expressed or executed." During his lifetime he delivered to his solicitors, who had custody of his will, a sealed envelope endorsed—"To be placed with my Last Will and Testament," and signed by him. After his death the envelope was found to contain three documents all holograph, of which one was signed and the others were unsigned. It was held by a majority of this Division that one of the unsigned documents must be given effect, on the ground that the facts showed that the testator intended the document to be read along with, and as part of, his formal will. Lord Anderson seems also to have thought that the signed endorsation on the envelope imported adoption of the unsigned document as a testamentary deed.

Applying these authorities to the present case, I reach the conclusion that the holograph list, in so far as it contains a list of gifts in money and in kind, is adopted by the testator as part of his codicil of 17th October 1929, which codicil is duly subscribed. The list was not physically attached to the codicil, but it was put up by the testator in a sealed envelope along with the codicil, and the envelope is addressed by the testator to his executors by an endorsation signed by him. In my opinion, it was thus clearly signified by him that it was his concluded will that it should be regarded as part of that codicil to the extent indicated in the codicil itself. In so far as it contains other matter, I am not prepared to hold that it is effective. There is no decision which goes so far as to hold that, where a holograph document is enclosed in an envelope, even if that envelope be found sealed in the repositories of a person deceased, his signature upon the envelope will supply the want of a signature upon the writing itself. I do not read the decision in Ronalds' Trustees as going so far. In my opinion, the validity of the holograph list depends in this case upon its adoption by the codicil, and extends only to the extent to which the language of adoption used in the codicil can be applied to it.

The result is that the list of pecuniary legacies and bequests of pictures falls to be given effect to as part of the testamentary dispositions of the testator. But otherwise it is ineffective to revoke or alter the provisions of the codicil of 17th October 1929. I propose that the first question should be answered to that effect.

Even if I had been of opinion that the holograph writing as a whole was valid as part of the testamentary writings of the testator, I am of opinion that the contention of the third party that it confers upon her a fee of the testator's heritable property of Pennagowan is unsound. [His Lordship then dealt with that and other questions which are not the subject of this report.]