Scottish Court of Session Decisions

At advising on 18th March 1948,—

LORD JUSTICE-CLERK (Thomson).—The first reported case in which the question of the validity of a will composed of a printed form with holograph additions came before the Court was Macdonald v. Cuthbertson . The printed form contained blanks for the name of the testator, the names of the legatees and the name of an executor. In the first of these blanks the deceased inserted his own name; in the second the names of his brothers and the words "equally and jointly, if one deceased to the survivor only"; in the third the name of a friend. The words of bequest and the description of the subjects were in print. The document read as a whole comprised a bequest by the deceased of his whole heritable and moveable property to his two brothers. It was held that the document could not receive effect as a holograph will.

The argument presented by the unsuccessful party, as appears from the opinion of the Lord President, was that the portion of the will written by the deceased himself was sufficient to show what his intention was, and that, if his intention could be gathered from these written words, the whole ought to receive effect as being holograph of the testator. The Lord President then went on to say that there were great difficulties in sustaining this argument. After pointing out what was and what was not in the deceased's handwriting, he concludes (at p. 105):

"In short, of the essentials of a will there seem to me to be two of the most important absolutely wanting in that part of the document which is in the handwriting of the deceased, namely, words of gift or bequest, and words descriptive of the subject of the gift or bequest."

It is to be observed that the Lord President did not say that the argument presented was unsound in law; what he did imply was that on the facts of the case it could not be sustained. Lord Adam said that he entirely adopted Bell's statement of the law that a document is holograph when it is wholly or in the essential parts written by the party and subscribed by him. He concludes (at p. 106):

"If the essential parts are not holograph, it is no matter how much of the rest may be written, how much printed. What we must look to is not the foreign element, but the necessary element."

Lord Kinnear said (at p. 108):

"It appears to me therefore that the question whether a document can receive effect as holograph is a mere question of fact; and I am unable to entertain any doubt that a document which is partly written and partly printed cannot by any possibility be holograph, if the printed parts are of any importance at all, because that contradicts the very definition of the word holograph."

Lord Kinnear also pointed out that instruments may in certain cases be considered holograph "although they may contain other writing than that of the subscriber, but then that has been allowed only in cases in which those additional words which are not in the hand of the subscriber of the document are purely formal or superfluous, so that if they were struck out or disregarded, you would still have a complete expression of the writer's intention."

It would appear therefore that in the light of Macdonald v. Cuthbertson it is a question of fact in each case whether one of these hybrid documents is holograph or not. In order to qualify as holograph the sense of the document as a whole must be conveyed by the holograph part. The non-holograph part must be "formal or superfluous." This involves reading the document as a whole and considering it as one document. The question to be asked is—Are the essentials of this document to be found in the holograph part ? If yes, it is a holograph document; but if any of the non-holograph part is not formal or superfluous, but enters materially into the import of the document, it is not holograph. The application of these principles is easy in a case like Macdonald where the holograph character of the document is being denied. They are not so easy to apply in the contrary case. Indeed I should have felt difficulty in reaching the conclusion that the document under consideration is holograph within the principles of Macdonald had it not been for the subsequent case of Carmichael's Executors v. Carmichael 1909 SC 1387 , in which the holograph character of a document substantially the same as the one in the present case was upheld.

In that case the printed form employed was similar to the present and the holograph additions though more extensive were, as here, designed to dispose of the whole estate. The Court—which contained Lord Kinnear who concurred with Lord President Dunedin—answered in the affirmative the question submitted:

"Is the said last will and testament a valid settlement of the whole estate of the said George Carmichael ?"

The Lord President first dealt with the question whether the document was testamentary in character. As the deceased had written in his own hand certain provisions as to his executors, the Lord President regarded that feature as decisive on that question. His Lordship then went on (at p. 1389):

"The document being partly printed, and not having been attested, it is only to be accepted as holograph in so far as the writing is holograph, because I take it that your Lordships are bound by, and agree with, the case of Macdonald, decided in this Division. But, cutting out the words which are here in print, I think there is still enough to make a perfectly good and intelligible will."

It was suggested to us that these words of the Lord President, and especially the last sentence, must be construed as meaning that the function of the Court is to obliterate the printed words and then to consider whether the holograph residuum bears internal evidence of its being testamentary in character, and once that has been established then to construe the holograph residuum as best it can. I do not think that the Lord President meant or could have meant any such thing. For my own part, my mind is incapable of the concentrated detachment that such an operation calls for. There is no warrant in Macdonaldfor any such course, and the Lord President is expressly following Macdonald. The vital question is—Is the document holograph ?—and the answer must turn on whether the sense of the document as a whole can be gathered from the holograph portion. In making that inquiry one cannot shut one's eyes to the printed portion. It is only after one has weighed the writing with the print and seen how they stand in regard to the document as a whole that one is in a position to say that the non-holograph parts can be disregarded. Further, there must be no antinomy between the document as a whole and the holograph portion, as otherwise the non-holograph portion would be more than formal and superfluous.

Carmichael's Executors can be explained on the basis that the substance of the document was in the holograph part and that the printed portions neither added to nor detracted from that substance. But I reserve my opinion as to what would be the result if in the printed portion there were matter which added to or detracted from the substantial meaning of the holograph part. The Court could not shut its eyes to the printed portion. I see no escape from reading the document as one document. Any other course might lead to unfortunate results. It would be most alarming if one were to spell a will out of the holograph portion and then to discover, as one well might, that it was contradictory of, or inconsistent with, the document as a whole. It is not a satisfactory answer to say that that is just the sort of risk run by people who employ these forms; they may think that they are making a whole will and find that they are making only half a one. In both Carmichael's Executors and the present case the printed form contained words bearing to revoke earlier testamentary writings. I reserve my opinion as to what would be the result in any case where the hybrid document came into competition with earlier testamentary writings. As the clause of revocation was ignored in Carmichael's Executors, I think it can safely be ignored here. In each case it is superfluous and unessential in the sense in which these words are used in Macdonald.

Accordingly the document in this case falls within the ambit of the decision in Carmichael's Executors. I ask first, as Lord Dunedin did in that case, whether the document is of a testamentary character. While I cannot point to a holograph appointment of executors I find ample evidence from the holograph portions that it is testamentary. The direction to "pay all my debts at my death," the disposal of what appears to be her whole estate and the instruction "all other money left by me to be divided among the family" seem to me to put the testamentary character of the document beyond question. I then apply Lord Dunedin's second test. Can it be affirmed, cutting out the words in print, that there is still enough to make a good and intelligible will ? Here the difficulty lies in the absence of any holograph words of bequest of the house to Margaret Kelman Bridgeford. Even if I am precluded from taking any help at all from the printed part of the document, I think that there is enough. The absence of "any verb which governs the substantives" was not regarded as fatal in similar circumstances in Carmichael's case.

It was argued that so to give effect to the holograph portion involved a contradiction with the meaning which the document as a whole bore. In the printed part following on the appointment of an executor there is a direction that "all my debts testamentary and funeral expenses shall be paid as soon as conveniently may be after my death." In the holograph portion, it was argued, Mrs Bridgeford as the chief legatee is saddled with payment of the debts. I do not so read the holograph words. The testatrix does three separate things: she makes the bequests to Miss Bridgeford, she provides that her debts be paid, and she provides for the division of the residue. The provision as to debts may be tautologous in the light of the printed direction, but it is not inconsistent with it. Accordingly, in my view, no question of conflict or discrepancy between print and writing arises any more than it did in Carmichael's case.

I suggest that we answer questions one and two in the affirmative and find it unnecessary to answer question three.

LORD MACKAY .—This dispute seems to me to concern primarily and almost entirely a question of the sufficiency of authentication of a certain mixed writing, in order to pass the standard of authenticity. The principal document is not before us, but a "photostat" copy of it is appended to the case. This document, called by all parties a "form of will" (see e.g., statement 10, opening), is prima facie at least, if no more, a bit of mixed handwriting and print, and is prima facie suspect as affording any security to the public, and to the Courts of interpretation—that security which good law demands—that it is the true testament, in authentic writ, of Mrs Isabella Bridgeford.

One of the major difficulties for me, and it troubled candid pleaders too, is that the dispute is couched in that form of agreed litigation permitted by section 63 of the Court of Session Act of 1868—a special case. Facts must be fully and frankly admitted and be common to all parties; the answers of the Court must be to an unambiguously worded question of law, as to which also parties are agreed. Now most of the similar controversies (and they are not many) referred to as in our books have proceeded by a proper litigation, directed in the Outer House by those on whom the plain onus of proof lay against others whose interest it was to represent the major question of fact as answerable in the opposite sense. Now, with such a proœmium as appears above, onus would undoubtedly rest on those propounding the suspect document as a well-authenticated will to which the Court must give (a) interpretation, and (b) effect according to the meaning adopted. Here such party is undoubtedly the second party only, that is, Miss Margaret Kelman Bridgeford, a daughter of the person named at the foot of the document, Mrs Isabella Campbell or Bridgeford. For the third party appears here as heir-at-law in intestacy to contest the so-called will, and the fourth parties do not put forward any contention. While I have said "most" of the cases went by proof led, it appears true that in the cases after referred to (cf. Macdonald and Carmichael) the Court proceeded to adjudicate upon the authenticity of other similarly suspect writings, under the same form of special case as we have here. The question thus becomes one of a handicap, rather than of plain incompetency.

The next important point is that, when a purported will is propounded, we have still a Commissary Court in Scotland, which used to be presided over by a Sheriff of Chancery, but the duties are now taken, by new arrangement, by one of the Sheriffs of Edinburgh—I think here Sheriff-substitute Gilchrist. It is nevertheless the nearest Scottish equivalent of a Probate Court in England. Now before this Commissary Court appeared someone propounding the document under discussion as a will, and asking confirmation to the estate, and some other or others of the opposite side asking for appointment of an executor as in intestacy, i.e., what is called an "executor-dative quanext of kin." The said Sheriff after hearing parties appointed the latter officer. He preferred the first party here; who accordingly appears in the special case as holding the moveable part of the lady's estate, thus:

"William Bridgeford,…executor-dative qua next of kin of the late Mrs Isabella Campbell or Bridgeford."

I shall not say the decision of the Court is final although it is empowered, if required, to hear a proof on such disputes. At other times practice is to sist process till a declarator or similar action is raised. But I do say that it is a fact, and a fact admitted in this case, that the judge of probate refused to sustain the instrument in question, at least as validly appointing any individual, and especially the claimant, second party, as executor-nominate in the circumstances. I may say at once (and it is indeed quite an important step) that I agree with that decision. Of one thing I feel quite certain, that, contrary to one of the submissions on behalf of the second party, no one, if once one ignores the printed portion of the whole document, would read the remaining words referable to that lady as an appointment of her as executor-nominate.

What we get, if we obey the injunction to close our eyes to the printed matter, is, after a name and an address at the top, and after, with a wide gap again between each, the further words "June…forty six"; and again after another gap, the twice-repeated name and address (exactly reproduced) thus:—

"Margaret Kelman Bridgeford, 19 Upper Grove Place,…Midlothian."

We get no more until, after another shorter gap, we should come to the word "house." And (but this carries us a little further into the merits) we find the words remaining in stante to continue thus:—

"house at 19 Upper Grove place,"

being the identical address already twice over appended to the second party's name. I therefore arrive with a degree of certitude at the first result, that, by no extension or indulgence competent to us, could we find with reasonable certainty that Miss Margaret Bridgeford, or any other, was appointed the executor of the wishes of the deceased so as to hold and administer her estates, either moveable or heritable. Nor even can it be said that it is to her, or to anyone, that such "directions" are addressed as "pay all my debts"; or, "to be divided among the family."

These things seemed to me necessarily preliminaries to a full consideration of the arguments adduced to us. There is one other, which may be postponed, however, and that is the true meaning of the principal adjusted question. I give it thus:—

"I. Is the said form of will a valid testamentary writing which effectually disposes of the whole estate of,"

the said deceased ? As to the propriety and exact scope of that question there has been a good deal of discussion.

I approach then our problem.

The question is, in my opinion, a question of authentication as an authentic writing: it is not primarily, or at all, a question of construction, although certain of the few authorities enable one to bring into play, in part, construction (but construction only of the words left upon an artificial treatment of the whole page or pages of the document)—construction then of written words, in aiding the Court towards the necessary satisfaction of the standard of safe authenticity. Construction, however, on the best authority, plays only its minor part.

What in the circumstances is that standard ? It seems to me the answer, and the only answer left open by the few authorities, is: Does the whole document (and here I am not to be understood as reinstating the printed words, but the whole paper as laid before this Court) answer to the minimum requirement as being a "writing holograph of the deceased ?"

Just as fully as does English law, in my judgment our Scottish law demands a security, before it permits that the laws provided on intestacy for controlling the passage of (a) heritable property, (b) moveable property on death shall be effectively displaced by other "testate" provisions. It requires first as a minimum, "writ": it prescribes that that writ shall be formal, in the sense that normally it does not permit of establishing informal and irregular scraps of writing as sufficient to constitute a testament. It looks, in other words, for what we in Scotland know as a probative document. In England, as we are led to understand, the various Wills Acts still insist, as a minimum for such security, on a "signature", and a "signature" seen to be appended by and ascertained by the further signatures of two witnesses. In Scotland, but for the acceptance of a certain form of privileged writing as probative, the rule would be substantially the same. In other words, the valid will in Scotland is one of the formal writs governed by the Act of 1681, cap. 5. The crucial divergence from English authentication, in Scots Law received, is the reception of a "privileged" form of writ known as "holograph." There are (see Bell's Principles and many conveyancing text-books) several "privileged" writs, e.g., such as bills of exchange, and I.O.U.'s; but we are concerned with one only of this kind: the "holograph" writ.

Now "holograph," by its derivation from the Greek holos, graphe, means essentially that the whole paper produced shall be written, all the body of it, with or in one hand, and that the admitted or proved hand of the signatory, whose deed it shall be represented as being. No less was ever the Scottish meaning of holograph. Certain common law (for this is not now a matter of statutory law, paceLord M'Laren's reassertion of his original words, see his Wills and Succession, vol. i, para. 514) indulgences have been allowed to creep in. (In my opinion, it is a would-be widening of such an indulgence that we are here moved to sustain.) The first received was that if a signatory, above his or her signature, and at the same time below, and in direct contact with, a writing otherwise continuous and above suspicion, writes the three words "Adopted as holograph." that is enough; and this allows his signature to govern these three words by which the whole above them is held to be a "holograph writing." Such indulgence has been exemplified for the most part in contractual writings (such as missives of sale or let), but one cannot doubt that the ratio must be extended to alleged testaments. But I may here interpolate that, standing the ratio of the requirements above stated, I can hardly conceive of the "adoption" as holograph of a "gappy" piece of paper such as we are invited to envisage here as resulting from the deletion or destruction of all the printed matter, leaving all the consequent gaps standing between such jerky words or series of disconnected words as are in that method permitted to meet our eye.

A second indulgence may be mentioned, to complete my little review, although not in direct point here. Certain truly holograph writings have been held from time to time sufficient, by importing a reference to other "informal writings under my hand," to sufficiently authenticate and introduce into the circle a later (or even earlier) writings that were not either witnessed or holograph in the full sense. So far had this indulgence proceeded that it was recognised that a stop must be imposed and, in the recent case sent to Seven Judges, there were limits fixed beyond which it should not be recognised.

I pass from this particular extension, however, by pointing out that both Lord President Inglis and Lord Kinnear in the case of Macdonald make it emphatic that this group of decisions have nothing to do with our problem. But I refer to the matter only for the purpose of bearing out what I am coming to, that the Court must and will guard itself by calling a halt carefully against any indulgence coming to amount to abuse, and so to a dispensing with the security safeguards above referred to. Such being the elements of our problem, I here narrate in their temporal order the authorities, whether by decision or mere dicta, by which the indulgence here claimed was endeavoured to be supported, or negatived. They are:—Lowson v. Ford, Colvin v. Hutchison, Macdonald v. Cuthbertson, Carmichael's Executors v. Carmichael, Cameron's Trustees v. Mackenzie . Oddly enough, no text-book authority whatever was adduced here, which would be odd in respect to such a supposed doctrine going back to about 1866; but it is in truth explained by the fact that in para. 514 of his weighty book on Wills Lord M'Laren contents himself with reiterating a view which he had put forward as a dissenting Judge: and that the late Professor Dykes in his "Supplement" to M'Laren expresses for himself no counter-view, but is content to cite as additional the cases of Carmichael and Cameron (see Supplement, pp. 62–63).

To draw out with accuracy from these dicta the true limits of the extent to which a relaxation will go is not altogether an easy task. But it is to be emphatically observed, at the outset, that in four out of these five cases the judicial result was to turn down (on whatever grounds matters not here) the propounded documents, as not having testamentary effect; and that only in one (Carmichael's Trustees in 1909) was the effort successful. Of all the others, I venture to make the remark that the dicta,however useful to aid our reasoning, were in the clearest sense obiter, since the various Judges (and I insist in listening to all the dicta, and not alone to those of Lord Justice-Clerk or Lord President Inglis) were at best endeavouring to express what was the "irreducible minimum," or what in other words they "might" in different circumstances figure as possibly sufficient.

Next in value I desire to put emphatically forward that, of dicta, those to be found in Macdonald's Trustees v. Cuthbertson are those more nearly approaching to a positive statement on this branch of indulgence, since Lord Dunedin leading the Court in 1909 (Carmichael's Trustees) has said, at p. 1389:

"because I take it that your Lordships are bound by, and agree with, the case of Macdonald decided in this Division."

At the same time one cannot pass by without remark a certain difficulty. I think that these words "bound by" were overstressed in argument, because his Lordship must be read as appending them to the preceding part of the sentence, thus:

"The document being partly printed, and not having been attested, it is only to be accepted as holograph in so far as the writing is holograph."

I therefore think that in consequence the construction of one small part sentence from Lord Dunedin which is found later in the same page:

"Reading the whole document here, I have no doubt that there is a perfectly good bequest in favour of the wife"

must take its context from the passage above, and be understood as "the whole so far as autograph of the signatory."

Then, how far do these dicta carry the law ? Is the scope of the received doctrine enough to sustain an affirmative to the first question, or any part of it ? I proceed to look over the alleged precedents in order of time. Lowson v. Ford was really a case of the other type of extension referred to. There was a full and proper trust deed by Miss J. Bell, dated 21st September 1853. Four other papers were found in the repositories (nota bene) "lying beside the trust deed." Moreover, they were each headed "A codicil," or even in one case, "A codicil to my deed." Some were to be handed to Mr Reid (the agent who prepared the principal); others did not contain this direction, but contained lists of names and sums, e.g., one which I take as sample commenced "Miss Flowerdew £2000," and included "Orphan Institution £50," and the like. All were signed, but none bore to commence with the truster's name, as for instance, "I, Jean Bell," or the like. Four of the five were held invalid as testamentary deeds, the fifth (No. 2) was sustained because of specialties. The only passage of real bearing (since Lord Cowan pointed out at p. 637 that "their admittedly holograph character excludes objection to them on that ground") is this following (p. 639) "Conjecture of that kind however will not make the writings testamentary, if they are not so in themselves." Now, that sort of "conjecture" entered not a little into the arguments here, as for instance speculation as to what Mrs Bridgeford meant in filling up an English form with only one signing witness. I shall later return, however, to the real bearing of the facts admitted. I pass on to Colvin v. Hutchison, really the first of the type. I think it was misunderstood. The writing in question (Brennan having left no formal trust) was a blue-pencil-written sheet, found in a trunk under a shop counter. It was in "an old envelope," cut open. A figure stood at the top of one column, thus, 3.500—with no monetary sign. It was not against any name or purpose and did not correspond to any addition of the other figures present. Otherwise that column was a list of figures and of names or purposes, such as "masses," "poor," "blind," "grave." At apparently a side column apart, the word, written in same pencil, "will" appeared: another word standing apart was "of," and standing perpendicularly were the signature "John Brennan" and after it:

"£1 a week to father."

Now it seems to me, for the purposes of the argument as presented to us, most important of all that this document was held bad and that both by the Lord Ordinary (Lord M'Laren) and by the unanimous appellate Court. A proof of considerable dimensions had been led. Note that (1) the writing was not interrupted by any gaps or by any printing to be held as delete: (2) the writing was all "holograph," (3) and that the words "will" and "of," though badly placed on the paper, were yet in Brennan's hand. The Lord Ordinary rejected it; but among his reasons appears to have been (as he was understood) that as a minimum in such a document there should have been (a) "a verb expressing conveyance or transference," and (b) that the expression "must take the form of a proposition." So read, Lord President Inglis at p. 955 expresses disagreement. I of course agree. For there are other ways of putting in writing one's desire than to make a grammatical sentence, or to use "convey" or "make over." On the other hand, I think, like many passages in this and other will cases, the disapproval expressed was overread. The Lord Ordinary did not in fact confine himself to such inferred expressions. He had said "It is not required by our law that a testator should make out his will according to any prescribed plan, that he should make use of any prescribed words.…But he must declare his will in writing, and it is implied in this statement of the law that he must use significant words disposing of his estate." I have diligently compared that sentence with several of the later dicta and it seems correctly to set the test. While the Lord Ordinary did, later on, include the phrase about "form of a proposition," he followed it up with saying that the writing "is defective in this respect, that the relation between the persons and things specified is wholly undefined." Now, I read the disapproval in the sole passage selected (p. 955) for citation as one limited to the meaning hypothetically ascribed to Lord M'Laren. The President does not say:—

"The learned Judge below really limited himself so."

But the mere criticism falls to be understood as leading up to the more positive light supplied in the immediate context. I cite these words:

"I do not think it matters how inelegant…if it can fairly be construed to mean that he bequeaths certain sums of money to certain individuals, sufficiently designed in the writing."

Moreover, nothing could be more dangerous than among obiter dicta to confine ourselves to one only of several Judges or one only of several dicta of the same Judge. I therefore quote Lord Shand (at p. 957), who after citing Jarman on Wills, went on to apply the law as he understood it as follows:

"Accordingly, if in place of the single and very unsatisfactory words of enumeration…words which from the first to the last, with the one exception…require extrinsic evidence to explain their meaning—the writing had contained an explicit enumeration of legacies, if the names of the persons favoured with the sums…had been clearly designated, and the writing had then concluded with the words ‘the will of’ with the signature appended, my impression is that that would have been a good testamentary document though without any words of conveyance. If in addition the word ‘to’ had been prefixed to the names of the legatees, I cannot doubt that it would have been so. (The italics are mine.) Nothing short of citation in full will satisfy the question—How did Lord Shand at least regard a reasonable minimum to satisfy authenticity in an "

irregular" document ? So, lastly, I consider the standard for what was throughout our hearing called "the irreducible minimum" is not to be looked for, and found, alone in the passage from the Lord President at p. 955, but better appears in his summing-up paragraph on p. 957. "I do not mean to say that a paper of this kind, consisting of a mere schedule,…may not be effectual, if you can extract from it a testamentary intention and act of the will. Supposing the paper had been headed ‘This is the will of A—to B, £100; to C. D., £200,’ &c., and that it had been regularly subscribed, I am not disposed to say that I should not have given effect to it, if the persons to whom the legacies were left…(dummodo constat de persona), and if the subjects…bequeathed were intelligibly described." (Italics again are mine, for the reason that in both cases words of importance are so easily glossed over in citation.) From these passages of Lord Shand and Lord President Inglis, and only from them, do I obtain a direct indication of what was the "irreducible minimum" which the then Court might pass. So far, then, as to the limiting indication I find up to the year 1885.

I pass to a much nearer case, that of Macdonald in 1890. Once more the document in question received no effect. Lord M'Laren here (in dissent) founded on the old Act of 1681, thinking for his part (at p. 108) that "It is the intelligent filling up of the deed—the combination of the printed and manuscript words—which make sense of the deed, and all that is necessary to convert the printed form into a deed is in the handwriting of the granter."

Now, then, that view of Lord M'Laren's of half-print, half-writing, while not originally irrational, remains a mere dissentient attempt, and has no longer the approval of any other Judge. It simply falls although reaffirmed in his own book at para. 514. I proceed. To me it seems insufficiently observed, that here we have the very first effort to bring into Court a combined "printed form" with its spaces for the filling in, and within the margins of the printing a sort of testing clause, demanding "signing, sealing, and publishing and declaring" as last will and testament, all in the presence of two witnesses who shall set their hands thereto as witnesses. The would-be will-maker had, as palpably as here, been lured into using a largely English provided "form." In other respects, too, while the details do not greatly matter, we had something very like to what in the present case we have to deal with. The "form," again so called, was headed in large print "This is the last will and testament": the other printed matter covered a deal of the paper. After "of" (in print), the remarkable initial word found before the handwriting, occurred a name (that of the signing person): then a line was in that case drawn across a blank (not so here), and we got (in print) "I give, devise and bequeath" [blank] "all and every my Household Furniture…Pictures,…Horses…Carriages, and…Sums of Money,…Securities…and Effects whatsoever…unto…" All this in print. At this juncture the signatory put in:—

"my two brothers [named] equally and jointly. If one deceased to the survivor only"

and added the single word "their" into a blank before the printed words "use and benefit." There was then a testing clause very like our Scottish one (but in print) asserting that the witnesses saw the signing and so forth. There was also a printed clause (providing no space for holograph words at all) "hereby revoking all former or other wills or testaments." Lastly, there appeared just before the testing clause a name "Edward Ogilvie Arbuthnot, of Shanghai," which, if it stood alone, meant nothing at all, but if read with the printed context meant that such person was nominated and appointed "executor of this my will." If it were the case, and I am glad to think it is in the end not the case, that cases of this sort must be judged by whether they are more near to precedent A or to precedent B, then this will of Brennan's is much more akin to our deed than is Carmichael's. But now for the dicta.

Now, once more I have to demur to single short and selected excerpts being taken as the full obiter dicta. There are two formulations not cited by the second party here which to my mind are absolutely necessary to give proper effect to the Scots law of authentication.

At page 105 Lord President Inglis says this:—

"The question then comes to be whether this document can be regarded in any sense as a holograph will."

He proceeds:—

"Now it is very difficult to believe that the deceased intended the document to be a holograph will, because he adopts a printed form—a skeleton of a will—intended to be completed according to the forms of the law of England."

He quotes, and then adds:

"Now he makes no use of that testing clause at all."

And after more to the same effect, the President adds:

"But there are great difficulties in the way of sustaining that argument…"

and again:

"The words in writing do not appoint the executor. They merely express the name and designation of the supposedexecutor, but they fill up the clause which begins in print:‘I nominate…’"

Now, I think each and all of these criticisms of deficiency are present here, and all together these deficiencies impress my mind as fully as they did that of the President. Like him, I find to over-look them a matter of "great difficulty." And I also think that all subsequent Courts should attend with anxiety to the utter rejection by three Judges in the majority of Lord M'Laren's plea (as it were) for the convenience of simple testators of such "forms" printed by printers. For my part, I shall always incline to disregard the alleged "convenience" because of the greater and palpably "dangerous" trend of such aids. But here again we have other dicta of great value from Lord Kinnear (pp. 108–109): and I see no reason why that careful Judge should in a question of the value of obiter dicta be less worthy of weight than the then President. Now I find this, and I agree with Mr Hill Watson in accepting it: (I cut out unnecessary words) "…holograph writings, which mean, and can only mean, instruments written entirely by one hand.…No doubt that definition requires to be enlarged by admitting…certain cases…but then that has been allowed only in cases in which those additional words…are purely formal or superfluous, so that if they were struck out or disregarded, you would still have a complete expression of the writer's intention.…The question whether a document can receive effect as holograph is a mere question of fact: and I am unable to entertain any doubt that a document which is partly written and partly printed cannot by any possibility be holograph, if the printed parts are of any importance at all, because that contradicts the very definition of the word holograph." (The italics are mine.) I pause there to say that these carefully chosen words express my own views of the principles involved, and I am surprised that they were cited to us only in the fourth speech. His Lordship adds one more thing:

"It is of no consequence whether those parts of a document which are not autograph of the subscriber are written by somebody else or whether they are printed or lithographed."

Again, that is exactly my view, and one of my tests. As to the document so commented upon by these two lawyers, I have already said that it was rejected.

Now, so far we reach to 1890, and have found (for me) nothing but sheer discouragement to adventure a step out of line. If we can, I would advise that we accordingly stick by Macdonald and find in the expressions of Lord Kinnear, Lord Adam, and Lord President Inglis, the criterion for passing upon irregular, piebald, paper like the present. I may just add, having no space to quote Lord Adam in full, that I agree with him again, when he says:

"I may say that I do not think any question of intention arises here."

Therein, to my view, lies the mixed fallacy contained in question No. 1 in this case.

But I come to Carmichael's Executors, which is naturally the sheet anchor of the second party. It is, of course, the solitary success for the irregular document capable of being cited. Now, I am aware that for a time in the hearing a suggestion gained some ground that there were two variant outlooks to be found in Macdonald, and in this Carmichael; one (it was supposed) proceeded on the view that you blinded out all the printed parts, or otherwise bad parts—parts written that is in alien hands—even if such parts consisted of one long sentence, and strove to read the autograph as if it stood alone, and only if one could so arrive at any intelligible testamentary intention or intentions did the deed stand. The other theory was supposed to follow a different course; thus perhaps:—if you can find in the autographed words, single phrases, or even single names, anything which is suggestive of a future outlook upon the death of the signatory (e.g., "pay my debts"—not obviously a testamentary exercise), and if you can construe even one single good gift out of the whole in that way, then you open up the "whole document," and may proceed to read back the printed portion into it, and, that done, of course construction becomes easy.

Apply that latter supposition to the deed here: if you have a gift of a heritage to the second party by dint of finding, spaced only by an empty gap of three-quarters of a line, her name and address, and then you next read—"house so and so" (her own domicile in fact) and, if you apply a very favourable construction to the apposition of such truncated words and objects, then you can open the whole matter and doing so you not only read one good gift, but you re-open all, and can obtain:—(a) a revocation clause of all prior deeds (although this itself be wholly in print or alien hand); (b) an appointment of executor which right so falls to the same lady and with the very same address, and (c) a possible context, such as commas, for inferring gifts to her again of various moveables, including everything in "the house" (query, what house ?), and "insurances," meaning perhaps and only just possibly the policies which the alleged testatrix had ready to be claimed on death, and (d) lastly, that "the family" becomes an intelligible group among whom the above "executor," and no one but she, can "divide," and so one gets a division into certain portions of "all other" money. What is "other money"? Some of these queries are only stated as indicative of the alarmingly enlarged inferences which on the latter of the two theories are permissible. I only put it so, not in order to spell into, or out of, this deed, which, following Lord Kinnear, I think is not our function, any series of gifts amounting in total to "the whole estate"—I quote the question again—but in order to test the supposition itself as about the real meaning of Lord Dunedin and his fellow Judges, in this late instance. My answer is clear and crisp. As I showed early, his Lordship held the Division "bound" by Macdonald'scase¹—I assume by the ratio to be gathered from all the opinions of the majority Judges, for it cannot be by the actual decision. Being so bound, I have utter confidence that Lord Dunedin's acute logical mind could not, and did not, lead him to apply positively dicta of three Judges in such a way as to initiate a new (and to me, startling) method of construction, so that what was de facto not autograph of A, and therefore not part of a "holograph" of A, is made to appear "holograph" of him in Lord Kinnear's apt sense. Read then with care, we must, in my judgment, hold that Lord Dunedin and those who agreed, applied the indulgence, as I must still call it, in just the same way as the dicta of Macdonald's case.

Rejecting that diversified view then, what is to be made of Carmichael itself ? Does it as a solitary instance force us (however much against our now established finding of principle) to apply the same indulgence (that word now comes to rest, for it is obvious there was a wide "indulgence") to the present deed ? I am quite clear, No. What are the vital differences ? First and foremost there was in the very midst of some 28 lines of close and consecutive handwriting, the important phrase:

"I appoint Robert Carmichael…to be my "

executor along with [others]…When my son…reaches the age of 21 years, my brother shall cease…but my four sons shall then be my only executors." Follows in immediate sequence, the admitted signature. Now it may be true that, while of old no testament omitting "executors" stood, and that, indeed, when "I appoint Y. my executor" was there, it alone made a competent moveable will, yet this as a necessary requirement was done away with. Yet it remains true that such an executry appointment, in terms carrying far into the future, made a most successful start for finding, not indeed a "testamentary flavour," as the second party put it, but a full and effective testamentary expression. Here then, differing from Carmichael, is, in my firm opinion, no appointment of executor. For it was impossible in my view (without the fallacious assumption above) to rear up the first of two mentions of the same lady at the same address into a sentence conferring on her, and as inferring that she gets, the office of executrix, while under an echo she is to be understood a beneficiary.

Secondly, and almost equally important, there was in Carmichael, as I have just said, 28 lines of consecutive handwriting, which yet associated in the body of a single sentence, all "houses, lands,…stocks,…musical instruments," &c., &c., with "Jane Carmichael (née Clark)"; while also the sentence finished:

"except the piano, which is to become the property of Isabella."

The reference to becoming the property of Isabella therefore tinges with the same word "property" the many subjects going before. The next and locally continuous sentence was:

"I desire at"

[certain deaths] "that the whole of my estate be divided as follows." We get sums of money in detail, and "remainder" divided into adequate parts. All which "division" can be effectively done by the said appointees, who follow immediately thereafter.

Thirdly, as regards "gaps," this deed, as read by the First Division in 1909, left therefore no "gaps" of any sort or at least of importance except (a) a very short one between testator's name and the next unassociated names:

"[R. C.] my brother and [R. A. C.] my son,"

names which I for one could not have been able to hold apt to constitute two joint executors, unless the writer had gone on (as he did go on) in the autographed part to express such executry gift.

Fourthly, I do find that there was a revocation clause and entirely in print, which fell, as I understand the doctrine, to be read as delete. But to this feature the Judges, in presence of the other positive indications which were of greater moment, give no attention or apparently even any consideration.

I am quite clear that the facts of Carmichael in the first three respects are totally different from those given in the special case. And remember that Lord Kinnear says the difference is largely one of fact. The words in the opinion would seem fatal to the view proposed to be taken by your Lordships upon the words "cutting out that part which is printed," &c. How can I think that Lord Kinnear who took part in the result of Carmichael was one to depart in any way from his own most careful and accurate prior exposition ?

I find in the present deed and agreed facts an absence of any of the palpable indications contained in the first three heads above. I find such serious gaps that I feel sure (could it ever recur) that, if this page of stuff were presented without the inevitably misleading history and the filling up of interspersed print from place to place, and if to the eye supposed there was shown an otherwise blank sheet, blank but for the autographed writing and the signature and address occurring at the very foot of the page, left out as it were in the cold, no Court would be induced to uphold such a production as a sufficiently authenticated "holograph" document.

There are so many hostile indications that I find it hampers me to express them shortly. The function of signature to complete and constitute a probative writ assumes that it shall follow without suspicious gap or gaps, direct from the body of the writing. That was one of the grounds on which Brennan's signature (Colvin v. Hutchison ) was disregarded. The same necessity (for security against fraud and other doubts) requires that the matter itself should also be substantially continuous. Thirdly, the critical observation about the "grave difficulties" to be surmounted, of Lord President Inglis (in Macdonald)applies here with redoubled force. The document put before us (in photostat) comes in two connected sheets, and the second page shows clearly that it is meant to be "skeleton" for a tested will in English form. The later page (if I may look at it, which I think parties have made doubtful) shows that certain peculiarities of Scots law are noted apart (within brackets), but the power to make a continuous autographical and therefore "holographed" document is not even remotely referred to. The lady who signed, and who obtained one witness to her doing so (I think we cannot possibly ignore that plain fact put before our eyes), clearly began, if she never finished, a tested will in English, but good enough, shape. Therefore, I think we might properly take it as a highly probable factor of fact in the case that she did not at any moment intend to make a will as holograph. If so, she never completed the will she set out to authenticate. I (while not in any wise bound to hang upon this alone) think it would be unwise to hold, unless compelled to do so by authority, that in this piebald shape any person setting out to write a will could by mistake or blunder stumble into achieving a holograph, a privileged, document.

In the present instance, if we should allow our judgment to be influenced by the arguments adduced, we should be taking one further, and probably irretraceable, step far beyond that taken in Carmichael. I am strongly of opinion that here is the time to stop the onward rush, and to give the public to wit that a holograph and privileged deed must be one, in the proper sense of Lord Kinnear, a really complete and continuous deed, so put together that the signature adequately and without risk guarantees the meaning and authenticity of the whole contents.

There remain two points of importance which I cannot overlook: First there is the citation of the last case, Cameron's Trustees v. Mackenzie, in which I note I was of counsel. There was a trust-disposition and there was a codicil dated 12th January 1911. In addition, in "repositories" were two deposit receipts of banks. Each was endorsed as for collection, and each had a slip of paper attached by pin. Both slips were admitted to carry her usual signature, Mary Cameron. One bore to divide the amount, correctly added, among three named persons; the other bore "for annuity" to another named person. It was argued that that meant an instruction (under holograph) to the executors of the formal will so to divide or so to invest. The First Division held they were not valid testamentary documents: and again, not upon construction of them, but upon the legal requirements of such a document. Lord Strathclyde at p. 318 bears to accept fully the negative points of Lord President Inglis in Colvin, but apparently did not find it necessary to proceed to the other better or rather more helpful dicta, which I have cited. But he did (and this is important as it is the same Division as in Macdonald and Carmichael) say this:—

"But we must find in the writing itself words indicative of an intention to bequeath. In the case before us the only word which is pointed to as indicative…is the preposition ‘to.’…I am of opinion that that word ‘to,’ prefacing these names, is not sufficient to indicate testamentary intention."

Now I am free to say that as counsel at that date I held somewhat strong views as to the circumstances being enough and just because I thought, as I now express it, that the question of testamentary character rests much more securely on the facts, there undisputed, than on any "intention" to be inferred from actual expressions; and that the pinning, the company, and the holograph writ (without any admixture of alien writing) were there enough. But it was notwithstanding unanimously held to the contrary, and so closes the innings, as it were, with a decision of the same Division hostile to the two documents, where (in my judgment) the other facts were (in all ordinary common sense) indisputably indicative of an intention to make a complete holograph donation (especially looked at along with the endorsement) of a specific sum to specific relatives.

If necessary, Cameron's Trustees caps the sequence and again warns of the danger of proceeding too far. The last point, not taken up in any proper question but argued to us (for the critical question No. 1 can only refer to it because of the word "whole" in "whole estate") is the special position of the heritage. It may or may not console the loser to know that, on this point alone, I would have refused the alleged authentic bequest of "a house." For by the ordinary law, a "testament" could not convey a heritage. By the Act of 1868, section 20, such a will can now carry a heritable subject, but only if it "shall contain with reference to such lands any word or words which would, if used in a will or testament with reference to moveables, be sufficient to confer upon the executor of the grantor, or upon the grantee or legatee…a right to claim, &c." The section goes on then to state that:—

"Such deed or writing…shall be deemed and taken to be equivalent to a general disposition of the lands."

Accordingly not every moveable will, but only one of such a character as uses "word or words" referable to heritage, will do. If the law had been understood to go further, many difficult decisions (since 1868 put out) might have been unnecessary.

Here (excluding as I do, and must, all recourse to the once deleted printed words and sentences) I can put my finger on no such "word or words." Whether, if there had been here present that important little word "to," and if it stood along with a good appointment of executor, that would have been enough, is a distinct question. I do not need to express any view upen it, since neither the executry appointment nor the much canvassed "to" are in fact to be found.

Hence, in my opinion, I could not answer "Yes" to the first question. It should be divided up into subject and subject.

In the final result of this my attempt to reconcile and understand all the authorities together, it must plainly appear that I think the document represented by the photostat appendage is not authentic, and is not a will of the alleged testator.

I would propose therefore that we content ourselves with

"answering the first line of question (1) with a negative, and should find it unnecessary to answer any further part thereof, or deal with questions (2) and (3)."

LORD JAMIESON .—There can, I think, be little doubt that, in using the printed form employed by her and filling in the blanks in her own handwriting, Mrs Bridgeford's intention was to make her will. She, however, obtained the signature of only one witness and thus failed to have the instrument properly authenticated. The first question now before us is whether it can be regarded as a valid holograph will. If so regarded, we are asked to answer a further question as to its construction. As was very clearly stated by Lord Justice-Clerk Inglis in Scott v. Sceales the two questions are distinct and, differing from the English procedure, it is the function of this Court to determine in case of doubt first of all what are the testamentary writings left by a deceased person, before proceeding to any question of construction.

Documents partly written on printed forms very similar to that in question here came before the Court for consideration in Macdonald v. Cuthbertson and Carmichael's Executors v. Carmichael . In the former it was held that the writing was not a valid will, in the latter that it was. In Macdonald it was maintained that the written portions were sufficient to show the deceased's intention, and, if that could be gathered from what he had written, the whole document ought to receive effect as a holograph will. In that case the subjects of bequest were contained in a long printed enumeration, the only written portions being the names of two persons to whom they were intended to be bequeathed, the granter's own name, and a name inserted in the space for the nomination of an executor. Lord President Inglis summed up the matter by saying (at p. 105) "In short, of the essentials of a will there seem to me to be two of the most important absolutely wanting in that part of the document which is in the handwriting of the deceased, namely, words of gift or bequest, and words descriptive of the subject of the gift or bequest." The case is valuable for opinions expressed by Lord Adam and Lord Kinnear as to what was necessary to constitute a valid holograph writing. Lord Adam said (at p. 106), "I quite concur in thinking that a writing to be holograph does not require to be wholly in the handwriting of the maker, but I entirely adopt Mr Bell's statement of the law of what a holograph document is when he says that holograph writings are wholly or in the essential parts written by the party and subscribed by him." Lord Kinnear went perhaps rather further, saying that the words not in the granter's own writing must be "purely formal or superfluous," so that if struck out there would still be a complete expression of the granter's intention. Then, after saying that the question of whether a document could receive effect as holograph was a mere question of fact, he added (at p. 108), "I am unable to entertain any doubt that a document which is partly written and partly printed cannot by any possibility be holograph, if the printed parts are of any importance at all, because that contradicts the very definition of the word holograph." Lord M'Laren dissented, holding that the document satisfied the requirements of a holograph deed.

In Carmichael the Court held that they were bound by Macdonald, but Lord Dunedin said (at p. 1389), "Cutting out the words which are here in print, I think there is still enough to make a perfectly good and intelligible will." There, the document was clearly stamped with a testamentary character, for the maker as well as filling in the space for the appointment of executors had repeated the appointment in his own handwriting. There were also other provisions in his writing clearly testamentary. After examining these, and in particular an apparent provision in favour of the granter's wife, but not introduced by any words of bequest, Lord Dunedin said, "Reading the whole document here, I have no doubt that there is a perfectly good bequest in favour of the wife."

The result of these cases appears to me to be this, that you must look at the document and first ascertain whether it complies with the requirements of a holograph testamentary writing. If it does effect will be given to it, the whole document being regarded as holograph. It was argued that what had been laid down in these cases was that you must read the written portions alone, as if the print were deleted, and, if the writing alone contained the essentials of a will, ignore the print. That method, it was said, would lead to difficulties, and an instance was given of the difficulty which would arise by ignoring the revocation clause, which appears in the form used in this and the decided cases, if there should be other testamentary writings. I agree that in such a case, if the writer did not dispose of his whole estate and so impliedly revoke any former testamentary writings, a revocation clause could not be ignored. But in such a case the revocation clause would not be unessential or superfluous, and the whole document could not be regarded as a holograph writing. The proper method of approach appears to me to be to consider both the writing and the print. If the former contains the essentials of a will, and the latter, but only if the latter, is non-essential or superfluous, effect will be given to the whole instrument as a holograph testamentary writing.

Adopting that method I think the document in the present case can be so regarded. The written portions are clearly testamentary. The writer speaks of payment of her debts at her death, and directs the division of "all other money left by me" among her family. It is true that the gift of the house, &c., and the insurance policies is not preceded by any words of bequest. But, as was observed by Lord President Inglis in Colvin v. Hutchison, such words are unnecessary, provided a clear testamentary purpose can be implied, and in Carmichael the provision for the granter's wife without words of bequest was held good. Further, Mrs Bridgeford has, in my view, disposed of her whole estate, so the printed revocation of former testamentary writings, of which in fact it is agreed there were none, becomes immaterial. The only matter which has given me some hesitation is the printed clause appointing Miss Margaret Bridgeford executor, the name only being in her mother's handwriting. It cannot be said that the appointment of executors in a will is of no importance, and, if Lord Kinnear's dictum had stood alone, it would have given me difficulty. But the test laid down by Lord Adam was whether the printed matter was essential. The nomination of executors is no longer an essential of a testamentary writing. In the absence of such, an executor-dative will be appointed. It would, I think, be an injustice to the parties who benefit under the document if we did not hold it to be a valid holograph writing, and give effect to what I regard as the clear testamentary intention of the granter.

In my opinion, therefore, the first and second questions should be answered in the affirmative, and the third question does not arise.