Scottish Court of Session Decisions

Upon 16th July 1881 Alexander Thomas Maclean, one of the Judges of the High Court of Calcutta, and heir of entail in possession of the lands and barony of Ardgour and others, on the narrative that he was desirous of securing a suitable provision out of these lands and barony to his wife during her lifetime if she survived him, granted, under the provisions of the Aberdeen Act (5 Geo. IV. cap. 87), to her all the days of her life, if she should survive him, an annuity equal to one-third part of the free yearly rental of the lands and barony. The deed also declared that this annuity was restricted according to the provisions of the statute, and that it was to be accepted by his wife “in full satisfaction to her of all terce of lands, or half or third of moveables, or every other claim competent to her on my death,” excepting any annuity which she might be found entitled to as his widow from the Indian Civil Service Fund. The deed concluded, “And I reserve power to revoke or alter these presents in whole or in part; and I dispense with the delivery hereof during my life, and I consent to registration hereof for preservation and execution.”

On 19th August 1882 Mr Maclean executed a trust-disposition and settlement, in which he directed his trustees as to the disposal of his moveable estate. He appointed his wife to be the tutor and curator to his children during their minority, and declared—“And I hereby revoke and recal all former settlements and all writings of a testamentary character with the exception of a bond of annuity in favour of my wife dated 16th July 1881, executed by me prior to the date hereof, and I reserve full power to alter or revoke these presents in whole or in part.”

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Mr Maclean died upon 14th December 1889. He left a widow and four children, three daughters and one son, Alexander John Hew Maclean, who was in pupillarity, and who succeeded his father as heir of entail of the lands of Ardgour. In Mr Maclean's repositories was found a holograph will dated 29th November 1889. The first provision of this will was in these words, “I revoke all previous wills or testaments.” He bequeathed to his successor in the entailed estate of Ardgour all the household furniture and farm plant, subject to the use during her life or widowhood by his wife of such portions as she might desire. “(4) I bequeath the rest of my property, wheresoever and whatsoever, to my said wife for her use as to the interest or income thereof during her life or widowhood.” The value of the moveable estate left by Mr Maclean amounted to about £15,000, as specified in a schedule attached to the deed.

This special case was presented by (1) the heir of entail and his tutors and curators, and (2) Mrs Maclean, for the opinion of the Court on this question—“Does the holograph will dated 29th November 1889 revoke the bond of annuity dated 16th July 1881?”

The first party argued—The annuity was a testamentary writing which was revoked by the subsequent holograph writing. It might be difficult to have said what was the meaning of the words the testator used, but that he intended to recal this annuity appeared from two considerations—(1) the provision in the deed that it was to be accepted in lieu of terce made it a writing of a testamentary character; (2) because by the trust-disposition and settlement of 19th August 1882 the truster had revoked all previous “settlements and writings of a testamentary character,” but he expressly excepted this annuity, showing that he considered it was a writing of a testamentary character, and if he had wished his widow to take anything under the bond of annuity as well as what she took under the holograph will he would have excepted it in that deed also.

Counsel for the second party were not called on.

At advising—