Scottish Court of Session Decisions

At advising on 24th March 1943, when the judges of the Second Division were not present, the Lord President read the following opinion of the Lord Justice-Clerk, which he stated was the opinion of the Court,—

LORD JUSTICE-CLERK (Cooper).—The testatrix by her trust-disposition and settlement directed her trustees to give effect to "any writing under my hand and found in my repositories however informal the same may be provided it be clearly expressive of my intention." By a subsequent formal codicil she provided for the disposal of part of the residue of her estate "as I shall direct by separate codicil or informal writing under my hand." The question is whether testamentary effect can be given to a document, holograph of the testatrix and dated after both the settlement and the formal codicil, by which she purported to give new directions affecting the disposal of the residue, but which she left unsigned.

The main issue to which the argument before us was directed was how far a testator may by his duly authenticated settlement effectually direct his trustees or executors to carry out instructions contained in other writings to be afterwards executed, even if these are (a)lacking in the requirements on which the law insists as evidence of genuine and deliberate testamentary intention, and (b) not identified in, and adopted by, the settlement. But the prior question which must in every such case be answered is a pure question of construction, viz., whether the particular writing in question satisfies the description and fulfils the requisites sought to be prescribed by the principal settlement; for if it does not, the wider issue cannot arise.

In this case we are instructed by the testatrix to look for an informal writing "under my hand." We are of opinion that the document before us, being unsigned, does not answer to this description.

According to the normal acceptation of the words, a document "under my hand" means a document signed (i.e.,subscribed) by me; and an informal document "under my hand" means a document signed by me which is defective either in form or expression, or in solemnities of authentication, or in both. For the purpose of determining whether a document is "under the hand" of the granter, the signature is more than a mere formality or solemnity, and its unique significance as the recognised and indispensable token of deliberate authorisation of a written document, whether formal or informal, has long been accepted by common usage. In this context the word "hand" is a synonym for "signature," as in the once familiar phrases of the older testing clause "As witness my hand," or "I have hereto set my hand," and the term is still found in modern statutory phraseology in the references in the Stamp Acts to instruments and agreements "under hand only." It is, of course, possible for a testator to make it plain that he is using this, or any other, expression in a special sense, and in such a case the settlement will provide its own vocabulary, and the special sense will prevail. But in the ordinary case the words used must receive their ordinary significance.

With the single exception of Ronalds' Trustees v. Lyle, there is no case in which (the meaning of the words being uncontrolled by the context) the expression "under my hand" has been held to be satisfied without subscription. On the contrary, the view that a document must at least be subscribed in order to be "under the hand" of the granter is supported by Dundas v. Lowis (which was quoted with apparent approval by the House of Lords in Inglis v. Harper ) and by Wilsone's Trustees v. Stirling, Young's Trustees v. Ross, Fraser v. Forbes’ Trustees, Hamilton's Trustees, and Morton v. French . While the point is immaterial for the decision of this case, we would observe that, when the document "under my hand" is described as a "writing," as distinguished from a "letter," "memorandum," "jotting" or the like, and when no further dispensation from formality is prescribed, the decisions in Dundas v. Lowis and Morton v. French indicate that this description will be satisfied by nothing less than a probative writ, or, as it is put by Bell (Principles, section 1868), by "an authentic writing only." But in all the other cases (as in this case) there is to be found an added qualification of the nature of "formal or informal," and, when such a qualification is adjected, subscription without the full solemnities of formal authentication will normally suffice (cf. Young's Trustees v. Ross, per Lord Deas at p. 15).

Three cases relied upon by the second parties can, in our view, be distinguished. In the whole Court case of Baird v. Jaap, the material words were "any jotting under my hand," and the settlement before the Court contained another clause which referred to "any separate writing signed by me." Further, the document there in question was not only holograph of the testatrix, but also endorsed with a docquet which bore her initials. There are certainly indications in the opinions of Lord Cowan and Lord Benholme (and, more doubtfully, of Lord Handyside) that in their view it was enough that the "jotting" should be holograph; but this was not the view upon which the other majority judges proceeded, and, if these three opinions were intended to be given a wider application than to the specialties of the case before the Court, we consider that they cannot be approved. In Crosbie v. Wilson, the clause under construction was "a writing under my hand orany writing subscribed by me, however informal," and in an associated settlement then before the Court there occurred a clause with the words "by any writing holograph of myself whether signed by me or not." In such a context it is plain that the words "under my hand" were used in a special sense and could not mean "subscribed by me." The same observation applies to Lamont v. Magistrates of Glasgow, in which the words under construction were "writing under my hand or signed by me."

There remains the case of Ronalds' Trustees v. Lyle, in which the Second Division (dissenting the Lord Justice-Clerk and reversing Lord Fleming) sustained as effective an unsigned holograph codicil to a will which directed that effect should be given to "any writing under my hand however informally the same may be executed." The judgment proceeded, inter alia, upon the view that it was enough that the codicil should be holograph though unsubscribed, and in this respect we consider that the decision was unsound and should be overruled.

We have examined the above cases from the limited standpoint of the interpretation to be placed in different contexts upon the words "under my hand," and we are not committed either to the approval or the rejection of the various rationes decidendi in so far as these involved the determination of wider issues with which we are not meantime concerned.

Reverting to the present case, we consider that, in the absence of subscription, this unsigned holograph writing does not fall within the description of writings with regard to which this testatrix sought to make special provision, and on this ground alone we are of opinion that the question of law should be answered in the negative.

The suggestion was made, on the authority of Gillespie v. Donaldson's Trustees, that the insertion of the full name of the testatrix in gremio of the writing was equivalent to her signature at the end of it. We should have thought that the case of Gillespie was incapable of being reconciled with the tract of later decisions culminating in Taylor's Executrices v. Thom, but, to put matters beyond doubt, it is probably desirable that Gillespie should now be formally overruled.

We have the less hesitation in reaching the above conclusions because we should have been very reluctant to lend encouragement to any attempt by means of a so-called enfranchising clause to dispense with subscription as a requisite of a testamentary writing. It is not easy to understand why any testator should desire to be exempted from so elementary and salutary a requirement, or what good purpose is served by a provision directed to that end. While we have found it unnecessary to decide in this case to what extent, if at-all, the attempt so to dispense with subscription can ever succeed, this at least is plain that the effort to achieve the desired result is much more likely to be productive of controversy and litigation than of any advantage to either testators or beneficiaries.