Scottish Court of Session Decisions

Lewis Shedden, gardener, Kilmarnock, died on 18th March 1883. This was an action at the instance of Mrs Janet Shedden or Goldie, sister of the deceased, with consent of her husband, against John Shedden and others, next-of-kin of the deceased, to have it found and declared “that the writings following, namely, the words ‘Mr Lewis Shedden, i leave this to my sister Janet Shedden,’ written upon the back of a deposit-receipt of date 11th October 1880, granted by the Clydesdale Banking Company at their office in Stewarton, in favour of the deceased Lewis Shedden, Kilmaurs, for the sum of one hundred and seventy-two pounds sterling, and the like words written upon the back of a deposit-receipt, of date 9th December 1882, granted by the Royal Bank of Scotland at their office in Kilmarnock, in favour of the said Lewis Shedden, for the sum of sixty pounds sterling, are both holograph of the said deceased Lewis Shedden, gardener, Regent Street, Kilmarnock, and are valid and effectual testamentary bequests in favour of the pursuer Mrs Janet Shedden or Goldie of the said deposit-receipts respectively, and of the sums—principal and interest—therein contained.”

The deceased left no other testamentary writing, and these deposit-receipts constituted nearly the whole of his estate. The receipts were produced after the death of Lewis Shedden by the pursuer, with whom he lived the latter part of his life and down to the date of his death.

The defenders pleaded that the writings on the deposit-receipts were not valid or effectual testamentary dispositions by Lewis Shedden, in respect they were not subscribed by him.

A proof was allowed and led in order to show that the deposit-receipts had been delivered by the deceased to the pursuer, and that he had intended the documents to be testamentary writings. There was no question of donation in the case.

On 13th January 1885 the Lord Ordinary ( M'Laren) sustained the defences for the compearing defenders, and assoilzied them from the conclusions of the libel.

“ Opinion.—I took time to consider this case, that I might examine the authorities regarding the possibility of supplying the want of a subscription to a testamentary writing. There is no question of donation raised on the record, and the only question I have to consider is, Whether

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the words written on the back of two deposit-receipts amount to a testamentary disposal of the sums of money contained in these documents? The words are in each case—‘Mr Lewis Shedden, i leave this to my sister Janet Shedden.’

I think these words are to be read as if the writing had been, ‘I, Lewis Shedden, leave this,’ &c., and I so considered them. My individual opinion has always been in favour of a strict interpretation of the rule of law which prescribes that every testament disposing of property exceeding the value of £100 Scots must be in writing. An unsigned writing is in my view not a writing by which the writer intended to bind himself or to dispose of anything, and if this rule is broken down I am afraid that great injustice might be done to heirs and next-of-kin. It is very common for persons who are possessed of property to make memoranda of what they propose to do for their relatives when they may think it proper to execute a will, and it must frequently happen that such memoranda are left unsigned for future consideration. If it is known and understood that subscription is necessary to a will, the existence of such memoranda will not be a cause of embarrassment either to the writer in his lifetime (in case he may have mislaid them) or to his executors after his death. But if exceptions are to be admitted the Court will in such cases be called on to determine from surrounding circumstances whether the particular writing was or was not intended to be a will. When a testator puts his name to a paper which professes to dispose of the estate which may belong to him at death, this is presumed to be his will, unless the contrary is established, and in general the presumption can only be displaced by showing that it was a paper of instructions to a solicitor, or that being a will it was subsequently cancelled or revoked.

But this is a very different thing from allowing it to be shown by evidence that a writing which is defective in the essentials of a testamentary act was intended by the writer to have effect as such. The distinction between such a proceeding and the sustaining of a verbal or nuncupative will is very slender, and I should not be in favour of making it.

This subject was very deliberately considered by the First Division of the Court in the recent case of Skinner, and in the unanimous judgment there pronounced I understand their Lordships to have expressed the opinion—(1) That they would not in the future sustain any document as a will which did not bear the subscription of the testator; and (2) that the recital of the testator's name in the commencement of a holograph writing would not be sustained as a subscription or its equivalent.

If I were to sustain these writings I think I should be going against the opinion of a higher Court, and an opinion in which as a lawyer I entirely concur. The judgment will therefore be for the defenders, with expenses.”

The pursuer reclaimed, and argued—The dictum in Stair, iv. 42, 6, was ambiguous. The true import of the passage was that given by Lord Young in the case of Russell's Trustees v. Henderson, Dec. 11, 1883, 11 R. 283. The presumption that an unsigned deed was incomplete could be rebutted by facts and circumstances extrinsic to the deed, which could be proved by parole. Here there was delivery in such circumstances as to show that it was certain the deceased intended these writings to be his will. Even if Lord Stair's dictum was to be strictly construed, the pursuer was entitled to prevail, because the holograph writing was on an authentic writ. Such writings had been sustained when on bonds and bills— Currence v. Halkett, 2 Br. Supp. 121, Bell's Lect. i. 82.

Argued for the defenders—This case was ruled by Skinner v. Forbes, Nov. 13, 1883, 11 R. 88; Dunlop v. Dunlop, June 11, 1839, 1 D. 912.